Business Law: Andrew West on how different treatment in disciplinary cases can be justified

Andrew West of Gotelee Solicitors.

Andrew West of Gotelee Solicitors.

Two employees became involved in some sort of kneeing, face-licking, punchy, text message-threatening exchange that began at their employer’s 20th anniversary bash at the races – but what started as fun or banter, as onlookers saw it, escalated and led to one of the men losing his job.

The long and short of it was that he was dismissed for punching the other in the face. The other employee, who had sent threatening texts once the men had left the event, was given a final written warning. Two employees, same episode, different treatment. Was the dismissal of the first fair?

Initially, a tribunal said both employees had committed acts of gross misconduct and it was unfair to sack one but not the other.

The Employment Appeal Tribunal overturned that decision. The dismissed employee had punched the other in the face at a work event at which staff had been told about the standards of behaviour that would be expected of them.

The other employee had later threatened to do something that he didn’t carry out. The more lenient treatment of the second didn’t make dismissal of the first unfair; that decision wasn’t wrong or outside the band of reasonable responses. The two men were disciplined for different things. So, even though consistency is really important in disciplinary situations, it can be OK to treat employees caught up in one incident differently.


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But tread cautiously. You need to be very clear about who did what, and about the sanction that’s appropriate to their actions. Keep good notes of the thought processes you have followed in reaching your decisions.

: : Andrew West is a partner at Gotelee Solicitors.

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