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Inconsistent treatment and unfair dismissal

30th December 2011
We are often asked to give advice to businesses and individuals that believe a decision to dismiss an employee in a certain situation may be unfair because it appears to be inconsistent with a previous decision on dismissal. Frequently employers become worried about "setting a precedent" over a certain course of action, and similarly employees will often tell us that there is "a precedent" where their employer chose not to dismiss someone whereas the same employer has now decided to dismiss an employee.

While it is true that employers are expected to act in a consistent manner, this does not mean that they are forever bound by a precedent in the way in which they deal with a certain situation or allegation against an employee.

The recent case of General Mills (Berwick) Ltd v Glowacki in the Employment Appeals Tribunal (EAT) shows that a dismissal will not necessarily be unfair for inconsistent when the inconsistency can be explained. 

This case concerned a decision to dismiss an employee for breach of health and safety procedures, when it had treated a similar earlier case differently.

The employee in this case had been employed as an electrician, with duties that included repairing certain machinery. In carrying out a repair to a machine he disabled certain sensors and entered the main body of the machine to repair it, in contradiction to a clear safety warning. At a subsequent disciplinary hearing it was determined that his behaviour amounted to gross misconduct, and he was dismissed. He appealed unsuccessfully against the dismissal.

A claim of unfair dismissal was brought by the individual to the Employment Tribunal. The individual succeeded in that claim, as the Employment Tribunal accepted that in another case another employee had not been dismissed despite being guilty of a serious breach of health and safety procedures. That employee had been seriously injured as a result of that breach. The Employment Tribunal considered that the two cases where factually indistinguishable, and therefore the disparity of treatment resulted in the decision that the later dismissal was unfair.

The EAT, at the appeal against the decision of the Employment Tribunal, ruled that the Tribunal had not given suifficient consideration to the difference in facts between the two cases, and had failed to give proper regard to the company's explanantion of the difference in treatment in the two cases. In the earlier case the employee concerned had been seriously injured as a result of the breach of health and safety, to the extent that he took a lengthy period of sickness absence, and was eventually dismissed due to his incapacity. The evidence indicated that but for the lengthy sickness absence that employee would also have been dismissed for the breach of health and safety anyway. On this basis the EAT concluded that the decision to dismiss fell in a reasonable range of responses open to the employer in the second case, and concluded that the apparent difference in treatment had been adequately explained.

This case highlights the fact that the Employment Tribunal is required to fopcus on the particualr circumstances of the case at hand, rather than focus on a previous case. Difference in the circumstances of certain employees can justify different decisions in disciplinary cases, for example the existence of any current disciplinary warnings on the record of an employee. 

The best way to avoid the confusion caused by alleged "precedent" cases is always to focus on the circumstances of the case in question and the circumstances of the employee in question. So, while it is the case that employers should be consistent ion their treatment, they should not feel that they are bound to reach the same decision each time if there are background factors and circumstances which indicate that a different decision may be appropriate. Employers should therefore ensure that their disciplinary procedures allow a degree of flexibility in treatment over certain situations to allow for differences between otherwise similar cases. At Hallett Employment Law Services Ltd we can help you with the production  of a suitable disciplinary procedure to assist in reducing the allegation of unfairness over inconsistant treatment.

If you need any advice on the issues raised in this article please do not hesitate to contact us.     
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