Crime Reduction Initiatives (CRI) v Lawrence

For justification under section 15 of the Equality Act 2010, the question is objective. Where dismissal is a legitimate and inevitable means of achieving the employer’s aim, a procedural flaw in reaching that decision does not make the dismissal disproportionate. The flaw may found an unfair-dismissal complaint, but it does not itself establish disability discrimination.

An unpleaded alternative claim based on an erroneous procedural letter should not be remitted where the error had no connection with disability. An Employment Tribunal’s non-perverse finding that a fair procedure would have made no difference cannot succeed on appeal merely because it involves an evaluative prediction.

The claimant, a team leader, was absent with post-natal depression, which the Employment Tribunal found to be a disability. Her employer began an ill-health capability process but, through an HR error, invited her to a meeting in disciplinary terms. She did not attend and was dismissed on health grounds.

The Employment Tribunal held by a majority that the dismissal was unfair because the letter discouraged consultation. It also held by a majority that the dismissal was disability discrimination under section 15 of the Equality Act 2010, awarding £750 for injury to feelings. At remedy stage it unanimously found that attendance at a fair meeting would not have changed the dismissal outcome.

The employer appealed the discrimination finding and award. The claimant cross-appealed the no-difference finding and the amount of the award.

1. Appeal allowed; cross-appeal dismissed. The Employment Appeal Tribunal set aside the finding of disability discrimination and the £750 award for injury to feelings.

2. The Employment Tribunal had accepted that dismissal pursued the legitimate aim of managing the workforce and had unanimously found that dismissal would have occurred even if the claimant had attended a properly conducted capability meeting. On those findings, the procedural error in describing the meeting as disciplinary was irrelevant to whether dismissal was a proportionate means of achieving the legitimate aim under section 15 of the Equality Act 2010. Justification is objective and concerns the practical outcome, rather than the quality of the decision-making process.

3. The wrongly worded letter could support the finding of unfair dismissal, but could not render an otherwise inevitable dismissal discriminatory under section 15. The Tribunal’s majority conclusion that the dismissal was unjustified because the letter deprived the claimant of consultation was therefore unsustainable.

4. The remedies judgment appeared instead to treat the letter itself as a distinct discriminatory detriment. That analysis neither followed the liability judgment nor reflected a claim advanced in the ET1. In any event, the error in the letter was an unfortunate HR mistake and had no connection with the claimant’s disability. There was no arguable discrimination claim on that basis and no purpose in remitting it.

5. The unanimous finding that a fair process would have made no difference was a finding of fact within the Tribunal’s proper province. It was not perverse. The cross-appeal against that finding failed, and the challenge to the £750 award fell away.

• Employment Appeal Tribunal: allowed the employer’s appeal, set aside the disability-discrimination finding and £750 award, and dismissed the claimant’s cross-appeal.
• Employment Tribunal, London (South): reasons sent on 18 April 2013. It found the dismissal unfair by majority, awarded a basic award, and by majority found disability discrimination under section 15 of the Equality Act 2010. It unanimously found that a fair process would not have altered the dismissal outcome.