Procedural Error Does not Undermine Employer’s Justification of Discrimination

In Crime Reduction Initiatives v Lawrence the EAT has held that a procedural error in the dismissal process did not undermine an employer’s justification of discrimination arising from disability under S.15 of the Equality Act 2010. The fact that the claimant had wrongly been invited to a disciplinary meeting instead of a capability meeting did not affect the fact that dismissal was a ‘proportionate means of achieving a legitimate aim’.

L went on sick leave for several months before occupational health found that she was suffering from post-natal depression, that it was a long-term disability and that she was not then fit to return to her post or undertake interim duties. L was subsequently dismissed on health grounds. L claimed unfair dismissal and discrimination arising from disability under S.15 of the Equality Act 2010.

An employment tribunal found that the dismissal was unfair because, due to an HR error, L was sent a letter inviting her to a disciplinary meeting rather than a meeting to discuss capability. The majority of the tribunal found that this was intimidating and put her off attending the meeting. The majority also found that there was disability discrimination. The tribunal accepted that L’s dismissal was a legitimate aim, given CRI’s need to properly manage its workforce so as to effectively deliver its services. However, the majority found that the dismissal was not justified as proportionate means of achieving a legitimate aim because, in sending L a letter which suggested that she was being invited to a disciplinary hearing, L was deprived of her opportunity to be consulted. CRI appealed on the basis that the majority of the tribunal were wrong to say that the dismissal was not justified.

The EAT allowed the appeal. It noted that the letter went to process and procedure and not to the substantive decision to dismiss, given that the tribunal had found that L would have been dismissed in any event. The EAT considered that its decision in HM Prison Service v Johnson, and the House of Lords’ decision in Belfast City Council v Miss Behavin’ Ltd, clearly showed that purely procedural questions are irrelevant to dealing with justification. As Lord Bingham stated, ‘what matters in any case is the practical outcome, not the quality of the decision-making process that led to it’. Applying that to the instant case, the tribunal had found that dismissal was both a legitimate aim and inevitable. The fact that the letter inviting L to the meeting was wrongly worded and discouraged her from going to the meeting was only relevant to the unfair dismissal claim, not S.15 discrimination. Nor did the EAT consider that there was even an arguable discrimination claim based solely on the letter itself. The EAT therefore allowed CRI’s appeal and set aside the finding of disability discrimination.