Employment Law Speed Read – 13/08/18
13th August, 2018
This week we look at a claim of unfair dismissal where the treatment of other employees was thought to be inconsistent.
Doy v Clays Ltd
In Doy v Clays Ltd the Employment Appeal Tribunal (EAT) considered whether an employer had acted fairly in dismissing an employee, despite apparently treating other employees inconsistently.
Mr Doy had worked for Clays Limited (“Clays”), initially on a casual basis, since 2004. He was paid a yearly salary based on working 1,695 hours throughout the year, but he could be required to work more hours in some weeks than in others, and his pay for shifts was at two different rates based on a number of factors.
In 2016 Mr Doy had a dispute with his managers as to his level of wages for night shifts, but Clays supported the managers in the dispute. Following this there were two incidents of threatening behaviour from Mr Doy, to the extent where Clays’ general manager moved his family from their home as he felt they were in danger from Mr Doy.
Following an investigation by Clays and a disciplinary hearing, Mr Doy was dismissed for gross misconduct relating to threatening behaviour. Mr Doy appealed his dismissal but this was rejected by Clays. Mr Doy submitted a claim of unfair dismissal, alleging that there had been disparity of treatment between himself and other employees, including a number of employees who he claimed had made much worse comments than his, and a female employee who struck another worker on two separate occasions.
Employment Tribunal (ET)
The ET found that the reason for Mr Doy’s dismissal was conduct and held that dismissal was in the band of reasonable responses. As such, they found that Clays had acted fairly in deciding that this was a sufficient reason for dismissal.
Mr Doy applied for reconsideration by the ET, referring again to the disparity in treatment compared with incidents involving the female employee striking other workers which had originally been raised in his claim form, and also to an incident he had later found out about in which three other employees had kept their jobs despite being found to have stolen a high-profile book before its release date. The ET refused Mr Doy’s application, stating that the points Mr Doy raised had already been considered at the original hearing.
Employment Appeal Tribunal (EAT)
The EAT held that the ET had not in fact considered at the original hearing either of the issues raised by Mr Doy in his application for reconsideration. The ET made no findings regarding the incidents involving the female employee and his disparity in treatment in comparison, while the new matter raised by Mr Doy was raised for the first time in his application for reconsideration.
The EAT concluded that the ET had erred in not considering Mr Doy’s disparity argument in the original hearing, which made Mr Doy’s appeal against the ET’s refusal to reconsider academic. The case was remitted to the ET for a fresh hearing before a new tribunal.
This case serves as a reminder that employers must strive to treat employees as equally as possible in disciplinary matters, otherwise they will open themselves up to claims of unfair dismissal based on disparity of treatment regardless of the severity of an employee’s conduct.
During an internal disciplinary and appeal hearing it could be that where an employee does not strongly focus on a particular argument around inconsistent treatment, the disciplinary and appeals officer may still want to make further enquiries to satisfy themselves that the disciplinary allegation is being dealt with consistently. Even if the allegation are similar, it may well be that you are still able to justify a difference in treatment based on the individual circumstances of the case.
If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.