A fair and reasonable employer should treat all employees consistently when considering and applying disciplinary sanctions. The basic principle is that if one employee gets a final written warning for the use of bad language in the workplace, a further employee doing likewise should also get a final written warning.
Sometimes though, there may be a significant differential that necessitates when the principle of consistency will need to be departed from. However, this approach must be taken with caution and with regard to the dangers of claims of discrimination.
Consistent Treatment in Disciplinary Cases
Recap on approach to unfair dismissal in misconduct cases
- Whether in the circumstances (including the employer’s size and administrative resources) the employer acted reasonably in relying on conduct as sufficient to dismiss the employee.
- Considering the fairness and the substantial merits of the case.
It is not for the Tribunal to substitute their own view of what would have been reasonable but to apply the test of whether the decision to dismiss the employee on grounds of conduct fell within the range of reasonable responses open to a reasonable employer.
Making Distinctions
In London Borough of Harrow v Cunningham, the approach taken by the Courts to cases where employees were treated differently was to consider whether the differing treatment was so irrational that no reasonable employer could have taken that decision. In this case, the employee (Mr Cunningham) was dismissed for the same misconduct as a colleague. The employer justified the difference in treatment on the basis that the other work colleague had a clean record, whereas Mr Cunningham already had a final written warning. The Employment Appeal Tribunal (EAT) held that the dismissal was fair.
In Enterprise Liverpool plc v Bauress (1) and Ealey (2), the employees were both dismissed for doing a privately paying job on works time using works equipment. They appealed against the decision to dismiss them and cited a colleague who had been given a final written warning in similar circumstances. The employer sought to distinguish that case as that employee had admitted the offence from the outset and also had longer service. The EAT held that the dismissals were fair and it was rational for the employer to consider those distinguishing factors.
In conduct cases, the following factors might go some way to justify differing treatment:
- Length of service (although be wary of age discrimination) and track record
- Mitigating circumstances, admitting the offence straightaway and the showing of remorse
- Seniority within the organisation
- Consequences of the misconduct (potential or actual)
The above may help an employer defend an unfair dismissal claim. However, employers must also be mindful of consistency arguments being used as a basis for discrimination claims, e.g. employees alleging that they have been less favourably treated than a co-worker on grounds of a protected characteristic.
In Hussain v Royal Mail Group Limited, an employee successfully claimed unfair dismissal and discrimination in spite of evidence from members of the public that he had nearly crashed his van into a member of the public’s car and had called him a “white bastard”. In reaching its decision, the Tribunal heard evidence of racially abusive comments being made by three white employees who received no or lesser disciplinary sanctions than the claimant who was dismissed. Similarly, in Westlake v ZSL London Zoo (2015) where two employees were involved in a serious fight, one suffering a facial injury, only one was dismissed but the other employee got a final warning. The Tribunal ruled that the employer had not justified the difference in treatment between the two employees. That said, despite the employee win, she did not receive any compensation because the Tribunal held that she had significantly contributed to her own dismissal.
Comment
Consistency should be a cornerstone of any organisation’s disciplinary policy and employees should be treated consistently where appropriate. This helps to create a sense of equality in the workplace and the foundation of this is following established policies and procedures.
However, in some circumstances, it may be considered appropriate for the treatment to differ and employers should not be afraid to do so where they consider it necessary.
The larger the size of the employer organisation, the more difficult it is likely to be to monitor and manage consistency of treatment. This is going to be particularly the case where incidents are excused or dealt with informally by line managers and not even referred to HR or central management.
Key areas for employers to focus on:
- Training of line managers to appreciate, log and report more serious incidents.
- Record keeping
- Where employees raise comparisons during disciplinary proceedings and appeals, employers should deal with these thoroughly.
- If treatment is inconsistent between employees, be sure that you have relied on facts that show that the misconduct was materially different, committed in different circumstances or that an employee had a different conduct record.
- If there is a potential for an Unfair Dismissal case, be clear that your decision for dismissal lies within a band of reasonable responses.
- Consider whether they can give details of other comparisons which do support their action or so-called “reverse comparators” in discrimination cases.
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