Different treatment and different outcome

22 May 2012

Employers who want to treat employees, who guilty of, essentially, the same offence, differently need to take note of two cases.

General Mills (Berwick) Limited v Glovaki

An employee (S) breached health and safety procedures and as a result, suffered serious injuries.

S was unable to work or participate in disciplinary proceedings.  He was eventually dismissed on ill health grounds (capability) following medical advice that he would never be able to return to his job.

Subsequently, another employee (G) was guilty of similar behaviour as S but he was not injured.  G was dismissed for gross misconduct.  G claimed it was unfair because S had not been dismissed for gross misconduct.  The Tribunal decided G’s dismissal was unfair.

On appeal, the Employment Appeal Tribunal (EAT) disagreed and overturned the Tribunal’s decision that G’s dismissal was unfair.

The question was whether a reasonable employer would have taken the same decision to treat G differently to S.  Given the Tribunal’s finding that S would have been dismissed if he had not been too ill to work or attend a disciplinary hearing, the dismissal of G was, in the EAT’s judgment, fair.

Conversely, in First Glasgow Limited v Robertson the outcome was different.

A Bus Driver (R) interfered with a CCTV camera in the driver’s cab.  R had already received a final written warning earlier the same year in relation to a different matter.

R was dismissed for gross misconduct.

Two other Drivers, who had also been found guilty of interfering with CCTV cameras in their cabs, received final warnings.

In dismissing R, his employer placed no reliance on the live final written warning (a bit stupid!).

The Tribunal found that R’s dismissal was unfair because he had been treated more harshly than the other Drivers who had been found guilty of the same misconduct.

The employer appealed against the decision to the Employment Appeal Tribunal (EAT).  In relation to this aspect of the appeal, the EAT’s Judgment reads “We can deal with the..(appeal)..briefly.  It is not well founded”.  The EAT went on to say that, had the live final warning been taken into account by the employer, it might have made the different treatment reasonable and the dismissal fair, but they had not and so it was not.

A lack of consideration of the live final warning meant that there was no reason for R to be dismissed when other employees, who had been found guilty of the same misconduct, were not.  His dismissal was, therefore, unfair.

Our view:

Employers often want to treat “good” employees guilty of misconduct better than “bad” employees.  It is a dangerous road to tread because all employees can expect to be treated consistently.