Equal treatment

One of the most common dilemmas for human resources professionals when dealing with allegations of misconduct is: “does the punishment fit the crime?” Where an employee’s misconduct is proven and dismissal is on the cards, how important is it to act consistently? What factors can an employer use to differentiate the conduct of one employee from another and still dismiss fairly? These important points were recently considered by the Employment Appeal Tribunal in the Enterprise Liverpool case.

A case in brief

Enterprise Liverpool (ELP) undertakes repair and maintenance services for a number of housing estates owned by Liverpool Corporation. The claimants, Mr Bauress and Mr Ealey, were employees of ELP.

The two claimants were qualified joiners and each had been working for ELP for three years. Both joiners were required under their contracts of employment to attend to tenants’ premises to undertake any repairs required.

One day Bauress and Ealey were seen by three ELP managers undertaking work for someone else while in an ELP van and wearing their ELP uniforms. At the time, they should have been elsewhere working for ELP. This practice is known, at least on Merseyside, as ‘doing a foreigner’. This was clearly an act of serious misconduct.

The managers, aware that Bauress and Ealey were breaching company policy and their contracts of employment, approached the two employees to ask for an explanation. Bauress and Ealey denied that they were ‘doing a foreigner’ when asked on two occasions. When the question was asked a third time, an explanation was given that they had permission to be where they were.

The managers reported these events to ELP and a full investigation was undertaken by the project manager. The project manager decided, based on the compelling factual evidence, to dismiss Bauress and Ealey. This was upheld on internal appeal.

The appeal decision

On appeal, Bauress and Ealey raised in detail the issue of consistency of treatment. Another employee, Mr Bracken, had been found guilty of misconduct in similar circumstances. Significantly, he had been given a final written warning and not dismissed.

Bauress and Ealey believed this difference in approach to what was ostensibly the same situation meant they had been treated inconsistently, and their dismissals were unfair. ELP, however, distinguished the penalty bestowed upon Bracken for two reasons; his record belayed 30 years’ unblemished service, and he had admitted his misconduct straight away.

The tribunal approach

At first, the employment tribunal found merit in Bauress’ and Ealey’s argument. It decided that the discrepancy between the treatment of Bracken’s case and that of Bauress and Ealey was unfair, and that the dismissal was not within the band of reasonable responses in these circumstances.

The tribunal found that ELP had set a benchmark for itself in how it treated employees guilty of ‘doing a foreigner’. The decision was appealed by ELP to the Employment Appeals Tribunal (EAT).

The appeals tribunal took a differing view and decided in ELP’s favour. It found that the two factors distinguishing Bracken’s case from that of Bauress and Ealey were rational. The EAT equated these “rational” factors to acting reasonably and within the band of “reasonable responses” that an employer is required to observe when deciding whether to dismiss an employee.

The wider implications

How does the EAT’s decision impact more generally on the way employers should treat employees who are guilty of the same ostensible misconduct?

Any employer must remember that employees guilty of the same offence should be treated in a consistent manner. If an established policy or tariff is in place for a particular type of misconduct, it must be observed. Where employers fail to follow their own policies or are not consistent with the level of penalty bestowed in previous instances, case law supports the fact that an employee can successfully use the argument of “disparate treatment” in a claim for unfair dismissal.

An employer can, however, take differing action where similar misconduct has been committed but there are rational reasons to justify a different penalty. The EAT thought it reasonable that ELP took into consideration factors such as length of service and admittance of guilt when deciding upon the appropriate punishment.

Other factors might have included past performance records or an employee’s conduct history. Put simply, an employer must act consistently and have sound and objective reasons for distinguishing two instances of similar misconduct where one is viewed as meriting dismissal and the other is not.