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Employers - Are You Treating Misconduct Cases Consistently?

Some forms of workplace misconduct may appear so serious as to obviously justify dismissal as a matter of common sense. However, as an instructive decision of the Employment Appeal Tribunal (EAT) showed, the need for even-handed fairness and consistency is a constant in every employment case, no matter how grave (Doy v Clays Limited).

The matter concerned a worker who was said to have made extreme verbal threats to his line manager and another senior employee in the midst of a pay dispute. He was, amongst other things, alleged to have expressed a hope that they both died and that their children got cancer. The line manager said that he took a threat that the worker would find out where he lived and contact his wife so seriously that he felt the need to move his family out of his home.

Following an internal disciplinary process, the worker was dismissed on grounds that his threatening behaviour amounted to gross misconduct and had resulted in a complete breakdown of his employer's trust and confidence in him. His unfair dismissal complaint was later dismissed by an Employment Tribunal (ET) on the basis that his dismissal was proportionate.

In upholding the worker's challenge to that decision, however, the EAT found that the ET had failed to deal adequately with his complaint that there was an unfair disparity between his treatment and that of a woman co-worker who was alleged to have kept her job despite hitting two colleagues.

Although the ET had summarised the worker's case on the disparity issue, it had failed to make any factual findings on the point or to explain how, if at all, such findings affected its analysis of the unfair dismissal claim. The result was that the worker did not know why his arguments on the point had failed. The ET having erred in law, the worker's case was sent back to a freshly constituted ET for a complete rehearing.

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