The claimant was employed by HBOS Plc as a banking and savings advisor. The claimant had a good performance record.

A trace was placed on the claimant’s e-mail after discovery of a misuse of the e-mail system and it uncovered a volume of offensive emails forwarded by the claimant to colleagues. The matter was investigated, led to a precautionary suspension with full pay following the meeting and pending an investigation. Disciplinary proceedings ensued which led to the claimant’s summary dismissal for gross misconduct and a later appeal upheld the sanction.

The claimant relied on the fact that he never received written confirmation of his suspension and also that his appeal was held outside the respondent’s disciplinary policy. The claimant sought to demonstrate how the sanction imposed on him was harsh compared with a number of other employees whose circumstances, he argued, were similar to his own. The tribunal held that the claimant was not treated inconsistently with his colleagues due largely to the fact that their situations were not truly similar to his.

The tribunal relied on the case of Hadjioannou v Coral Casinos Ltd [1981] IRLR 352 in ruling that citation of a comparator as an adequate basis for such an argument is only relevant in limited circumstances. In the claimant’s case, the tribunal eschewed the adoption of a ‘tariff approach’ to the facts. In dealing with the respondent’s failure to stick to its own disciplinary policy, the tribunal stressed the fact that no prejudice had arisen was of overarching importance. Additionally, this did not affect the respondent’s reasonable belief that the claimant was guilty of gross misconduct.

Practical Lessons from this Decision

This case illustrates that in order to succeed in establishing unfair dismissal because of inconsistent treatment in similar situations, the allegedly similar situations must ‘truly be similar’. The tribunal echoed the Hadjioannou decision which requires the tribunal to scrutinise arguments based upon disparity with particular care. It seems that the bar remains firmly high for claimants who seek to cite a comparable individual in support of an unfair dismissal claim.