Could an invitation to a capability meeting, which was mistakenly referred to as a disciplinary hearing, give rise to unfair dismissal and discrimination?

Yes it can mean unfair dismissal, according to the Employment Appeal Tribunal in CRI-v-Lawrence. In itself, it could not give rise to discrimination, however.

Background

Ms Lawrence had been off work for over a year with depression. Her employer, CRI, wanted to terminate the employment because this had gone on for too long.

In long-term ill health cases, the employer needs to follow 3 basic rules before dismissing:

  1. Get an up-to-date opinion.
  2. Consider alternative employment.
  3. Consult with employee.

CRI had obtained an up-to-date medical report and looked into alternative employment, but still had to consult with the employee.

Unfortunately, the letter they sent to the employee appeared to be more of a disciplinary letter than a consultation letter.

The employee did not attend the meeting, and later claimed that this was because she had felt intimidated and discouraged by the invitation letter. She was dismissed in her absence and brought a claim for unfair dismissal and disability discrimination.

The Tribunal found that Ms Lawrence had been unfairly dismissed because she had been denied the opportunity to have a proper consultation. CRI did not appeal this part of the judgement.

The Appeal Tribunal found that the technical error did not give rise to a discrimination claim, however.

Implications for businesses

This is an important reminder to employers of the need to ensure that invitations to discuss performance issues are accurately phrased. A naive error could cost them dearly.

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