The claimant was dismissed for gross misconduct relating to ‘aggressive and threatening behaviour’. It was alleged that he had made comments about management and their children and that he ‘hoped they died’. Another comment threatened to find out where a manager lived. The claimant argued that there had been a disparity in treatment as other colleagues had made much worse comments than he had. He described the behaviour of other staff members, including a punching incident which did not even receive a verbal warning.

The appeal was allowed because the argument that managers were not treating all misbehaving employees equally was not sufficiently investigated at the tribunal. The EAT noted that consistency of treatment has two relevant aspects: sanctions should be applied properly, and the categories of behaviour to which they are applied should be consistent. The tribunal should have made findings of fact on disparity and proceeded to explain how, if at all, those findings affected its view of the unfair dismissal claim. The case will be reheard by another employment tribunal.

Practical Lessons

The EAT judgment highlights how employers must be objective and consider how previous incidents are dealt with at the disciplinary stage. One interesting point relates to the required managerial knowledge of previous incidences. The EAT noted that an employer could not ‘insulate itself from a potential unfair dismissal’ by claiming that one manager failed to escalate an incident to more senior managers. This suggests that incidents senior management were not aware of may technically still be relevant to arguments of disparity of treatment.

However, it has previously been held that the relevant knowledge of managers for the purposes of an investigation of misconduct is what is known by the manager or managers to whom the function of investigating and disciplining the employee is delegated. This point is likely to be revisited by the Supreme Court which has given permission to appeal in the case of Royal Mail Ltd v Jhuti [2017] EWCA Civ 1632.
https://assets.publishing.service.gov.uk/media/5b643760ed915d37611a9bdf/Mr_M_S_Doy_v_Clays_Ltd_UKEAT_0034_18_DA.pdf