No, I don’t mean equal treatment in terms of discrimination and the Equality Act (although that is important too of course!), but rather the importance of consistency when dealing with disciplinary issues.
Common sense says that if you have more than one person misbehaving in a similar manner then, in the absence of any good reason not to, any disciplinary sanction should be the same. Treating different employees differently for committing the same or similar acts of misconduct has always been one of the factors which an Employment Tribunal will look at when deciding whether or not a dismissal was unfair. As part of considering the reasonableness of the decision it is not necessarily enough to show that the sanction merited dismissal, the sanction also needs to ‘fit’ with the approach the employer has taken in dealing with issues with other employees.
This principle was illustrated quite dramatically in the recent case of Doy v Clays Limited. Mr Doy had been employed by Clays Limited since 2004. He raised issues about how he should be paid for working night shifts, and his queries were answered by his line managers, Mr Smith and Mr Bullen, in a letter which Mr Doy received on 14 April 2016. When Mr Doy arrived for his night shift that evening, he told colleagues that “he hoped that his line managers died” and that “he may have to kill them and he hoped that their children got cancer and died.” Not surprisingly, his employers took this seriously and suspended Mr Doy on full pay pending an investigation. Mr Doy then was signed off with stress.
A disciplinary meeting was scheduled, but before this took place Mr Doy handed in another sick note to an administrator and told her “I will expose this company to the media and on social media. I will show them how corrupt this company is.” He added that he would “find out where Bullen lives and go and tell his missus what kind of a bloke he really is.” When Mr Bullen heard of these threats he decided to move his family out of their family home.
Soon after this encounter a disciplinary hearing was conducted, at which Mr Doy was dismissed for gross misconduct. Mr Doy brought a claim of unfair dismissal, arguing amongst other things that he had been treated more harshly than other employees. His claim was dismissed by the Tribunal. Mr Doy appealed to the Employment Appeal Tribunal (EAT), again on the grounds that he had been treated more harshly than other employees in similar circumstances. He gave examples of an alleged incident where during an altercation between two employees one said: “Who are you going to kill next in your car?” to which the other answered “I hope your next wife”. He also alleged that the same shift manager had seen one woman punch a colleague in the face before hitting another weeks later. Mr. Doy claimed that none of the employees in these alleged incidents had been dismissed.
The EAT held that the Employment Tribunal which had dismissed Mr. Doy’s claim for unfair dismissal had not adequately investigated whether there was a disparity in the way the company had treated him when compared to other employees. They therefore ordered that the case should be reheard by a different Tribunal. It may well be that the new Tribunal will conclude that Mr. Doy was fairly dismissed, but the case is a good illustration of how employers can pay a heavy price for allegedly treating employees inconsistently. Even though they may ultimately be found not to have unfairly dismissed Mr. Doy, the very fact that they had to go through two Tribunal hearings and an appeal to the Employment Appeal Tribunal should be enough incentive to ensure that they can demonstrate that they treat employees consistently.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).