The claimant was employed by the respondent as a nursery assistant when she was sacked for gross misconduct.  The incident to which the dismissal related occurred in the early hours of a Sunday morning after a night out when the claimant had a verbal confrontation with another employee, Ms Brown, who was senior to the claimant. Ms Brown claimed that the she was put in fear of working with the claimant as on the night in question the claimant had called her a “tout” referring to an incident a few weeks previously when she had pestered Ms Brown for information about a colleague and Ms Brown had refused. On that occasion, the respondent sent the claimant what was described as a ‘line in the sand’ letter indicating that no disciplinary action would be taken but to remind the claimant of the relevant policies. She was later dismissed and unsuccessfully appealed.

The claimant argued that there had been inconsistency of treatment in that a proposal was made suggesting that she move temporarily to another nursery whereas no such proposal was ever made to Ms Brown. The tribunal held that there were understandable operational reasons for this differentiation, but also that the respondent had formed a reasonably held view that the claimant was the instigator of the trouble. The claim was dismissed.

Practical Lessons

This case deals with a circumstance in which an employer has deliberately differentiated between the treatment of two employees involved in the same incident. In such situations, the employer will obviously attempt to reach some conclusion on the matter after weighing up both factual accounts.

As per the decision in Securicor Ltd v Smyth, the distinction made by the employer may only later be impugned if there was no rational basis for it which obviously sets quite a high hurdle for claimants to overcome. Recent case law such as Westlake v ZSL London Zoo [2015] ET 2201118/2015 deals with a not dissimilar situation involving a fight at a staff Christmas party, yet in that case it was held that since insufficient evidence existed on which a conclusive finding on culpability could be made and it was not reasonable to dismiss one employee and keep the other. Employers should note that when the factual accounts are difficult to resolve, they are more likely to be held to have acted unreasonably if they dismiss one employee and keep the other.