A lack of consistency can undermine a decision, as illustrated in a recent case before the Employment Appeal Tribunal.
It involved an employee who had made threatening comments about senior staff members on two occasions. At a disciplinary hearing, he apologised for his behaviour, but he was dismissed for gross misconduct.
He brought a claim for unfair dismissal to the Employment Tribunal, arguing that he had been treated differently to a female employee who had kept her job following two incidents of physical violence at work.
The employer submitted that he had not raised the argument at the disciplinary hearing or the internal appeal. It was unaware of the alleged incidents involving the female employee and there was no evidence that he had been treated more harshly than another employee in a comparable situation.
The tribunal did not expressly deal with the disparity of treatment argument and found that the employee had been fairly dismissed for two separate incidents of extreme verbal threats.
The Employment Appeal Tribunal overturned that decision. It held that the tribunal was wrong not to have addressed the argument that the employee had been treated differently to the colleague who had kept her job despite incidents of physical violence.
The case was remitted to a different tribunal for a rehearing.
For further advice on any of the issues raised in this article, or for employment law advice more generally, please contact JPP Law on 020 3468 3064 or email [email protected]
