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Long term sick HR drafting error not discrimination but made dismissal unfair

11 April 2014 #Employment


In the recent case of Crime Reduction Initiatives (CRI) v Lawrence, the EAT held that a procedural error did not undermine an employer’s justification defence to a disability discrimination claim. However, it did make the dismissal unfair.

Mrs Lawrence worked for CRI and, whilst on long-term sick leave, was assessed by Occupational Health as suffering from post-natal depression.  This was considered to be a long-term disability and CRI was told that Mrs Lawrence was not fit to return to her duties at that time (or other duties on a temporary basis). 

Upon learning of this, CRI initiated its capability process.  However, due to an error by HR, the letter sent to Mrs Lawrence was badly worded and was expressed as if it were an invitation to a disciplinary hearing instead of meeting to discuss capability.  Mrs Lawrence contacted CRI to say that whilst she had every intention of attending, she felt that it would be upsetting to go through the information in a formal setting.  As she believed CRI had all the relevant information, she confirmed that she would not attend and that the meeting should be held in her absence.  Mrs Lawrence was subsequently dismissed on ill-health grounds and brought claims of unfair dismissal and discrimination arising from disability.

Mrs Lawrence succeeded in both of her claims and the employment tribunal made the following findings:

  • That the dismissal had been unfair because the letter had intimidated Mrs Lawrence and put her off attending the meeting (however, her award was limited to a basic award only as the tribunal found that she would have been fairly dismissed even if she had attended) and 
  • Whilst the dismissal was a legitimate aim (i.e. the need for CRI to properly manage its workforce), it was not justified because the letter had deprived Mrs Lawrence of an opportunity to be consulted

However, the finding of disability discrimination was overturned on appeal.  The EAT held that whilst the letter was “unfortunately” phrased, it was a procedural issue and the tribunal had made a mistake when it took this into account when considering if the dismissal was a proportionate means of achieving a legitimate aim.

This case serves as a useful reminder that letters inviting employees to discuss capability must be properly drafted and template letters must be used with care.

Clarkslegal, specialist Employment lawyers in London, Reading and throughout the Thames Valley.
For further information about this or any other Employment matter please contact Clarkslegal's employment team by email at employmentunit@clarkslegal.com by telephone 020 7539 8000 (London office), 0118 958 5321 (Reading office) or by completing the form on this page.

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Alison Flett

Alison Flett
Associate

E: aflett@clarkslegal.com
T: 0118 960 4688
M: 0771 784 1822

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