In a recent case, the EAT considered whether the fact that an employer had mistakenly invited an employee to a disciplinary meeting rather than a capability meeting was a material factor when considering its objective justification defence against a discrimination claim.
The employee in question had been diagnosed with post-natal depression, a long-term disability for the purposes of the Equality Act 2010, and was unable to return to work for the foreseeable future. The employer initiated its capability procedure to deal with the issue of her sickness absence, but in a clumsily worded letter appeared to invite her to a disciplinary rather than capability hearing. The employee declined to attend and told the employer to proceed with the hearing in her absence as she felt they already had all the information she could provide. The hearing took place and the employee was dismissed on the grounds of ill-health.
The employee raised claims of unfair dismissal and discrimination arising from disability. An employment tribunal upheld her unfair dismissal claim because the letter had been intimidating and had discouraged her from attending the meeting. It also upheld her discrimination claim. Having considered the question of whether the discrimination had been objectively justified, the lay members of the tribunal (the employment judge disagreeing) concluded that whilst the need for its workers to provide a service was a legitimate aim, the dismissal was not objectively justified as the letter had deprived the employee of the opportunity to be consulted.
The employer appealed to the EAT. The EAT held that the tribunal had erred in taking account of the letter when considering whether the dismissal was a proportionate means of achieving a legitimate aim. The EAT pointed to the case of HM Prison Service v Johnson  IRLR 951 as authority for the fact that purely procedural questions are irrelevant to dealing with objective justification. Therefore, in this case, the fact that the letter had been wrongly worded and discouraged the employee from attending was a procedural matter relevant to the assessment of unfair dismissal but not to the question of objective justification.
Although the employer was ultimately successful in its argument about the relevance of the letter to the objective justification defence, this case should still serve as a reminder to employers to ensure that any communications to employees are clear and accurate. The outcome of this case may well have been different if the employee had argued that the letter itself (not just the dismissal) was a discriminatory act.
Crime Reduction Initiatives (CRI) v Lawrence UKEAT/0319/13