There had been alleged differential treatment of an employee in relation to a similar offence on a different occasion.
Held: Waterhouse J set out three possible ways where decisions made by an employer in truly parallel circumstances in relation to a different employee may be relevant. In the first, employees may be led by an employer to believe that certain categories of conduct will be overlooked or will be more mercifully treated in the light of the way that other employees have been dealt with in the past. Secondly, it may show that the dismissal in the instant case is not for the reason put forward i.e. that the asserted reason is not the real or genuine reason. Thirdly, ‘Evidence as to decisions made by an employer in truly parallel circumstances may be sufficient to support an argument in a particular case that it was not reasonable on the part of the employer to visit the particular employee’s conduct with the penalty of dismissal and that some lesser penalty would have been appropriate in the circumstances.’ Waterhouse J continued: ‘It is only in the limited circumstances that we have indicated that the argument [that is the disparity argument] is likely to be relevant and there will not be many cases in which the evidence supports the proposition that there are other cases which are truly similar or sufficiently similar to afford an adequate basis for the argument. The danger of the argument is that a tribunal may be led away from a proper consideration of the issues raised by [the equivalent of s98 of the 1996 Act]. The emphasis in that section is upon the particular circumstances of the individual employee’s case. It would be most regrettable if tribunals or employers were to be encouraged to adopt rules of thumb, or codes, for dealing with industrial relations problems and, in particular, issues when dismissal is being considered.’
Judges:
Waterhouse J
Citations:
[1981] IRLR 352
Jurisdiction:
England and Wales
Cited by:
Cited – Epstein v Royal Borough of Windsor and Maidenhead EAT 15-Nov-2007
EAT Unfair dismissal – Reasonableness of dismissal
Dismissal by Employment Tribunal of Appellant lifeguard’s claim for unfair dismissal challenged, because the Tribunal is said to have erred in not . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 07 May 2022; Ref: scu.276833
