Doy was accused of threatening behaviour towards his managers following a work-related dispute. These threats led to one of the managers moving his family out of their home. Following a disciplinary hearing, Doy was dismissed for gross misconduct and brought a claim for unfair dismissal, alleging that there had been disparity of treatment. Doy said that other employees had made much worse comments than his, and claimed physical violence had taken place between colleagues.
The tribunal found that the misconduct dismissal was within the band of reasonable responses but it failed to consider Doy’s disparity argument in the original hearing. The Employment Appeal Tribunal therefore decided that the case must be remitted for a fresh hearing.
The statutory test for unfair dismissal is contained in the Employment Rights Act 1996 and sets out that when determining the question of whether the dismissal is fair or unfair this depends on whether in the circumstances (including size and administrative resources) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and ‘shall be determined in accordance with equity and the substantial merits of the case’.
The reference to ‘equity’ in the test requires consideration of sanctions that have been imposed on other employees in similar circumstances to ensure that the employer acts consistently.
While an employee at risk of dismissal may bring examples of inconsistency to the attention of their employer, this should not be relied on. The decision-maker should always make appropriate enquiries and consider consistency for themselves before coming to a decision on any sanction.
Where more than one employee is being disciplined as a result of the same incident it is worth considering appointing the same decision-maker to each case.
The employer doesn’t need to come to the same conclusion reached in previous cases, even when the allegations are the same or very similar. The key is to show that this has been properly considered and appropriate weight attributed.
A difference in treatment may be justified based on the individual circumstances of the case, for example because of mitigation. Only in rare cases involving ‘truly parallel circumstances’ arising from the same incident will disparity of treatment result in a clear unfair dismissal.
Nina Robinson is a director at ESP Law, provider of the HR Legal Service
