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Disciplinary proceedings – treating employees differently

Employment Law & HR
BG Purple

When considering disciplinary action against an employee, among the many considerations for employers is ensuring that the rules are applied consistently. 

Where employees suffer different sanctions arising from similar facts, any dismissal may be found unfair unless the employer can convince a tribunal that there were good reasons for the different treatment.  

The case of General Mills (Berwick) Ltd v Glowacki, illustrates the issues the employers face in such a situation.  In this case, Mr Glowacki was an electrician employed by General Mills.  He was asked to repair a piece of machinery, and did so by disabling certain safety features and entering the machine contrary to warning notices.  The employer viewed this as a serious breach of health and safety and dismissed the employee for gross misconduct.  

Mr Glowacki challenged the dismissal.  At the employment tribunal, the dismissal was held to be unfair on the sole ground that there had been a previously incident where another employee had committed a similar infringement and had not been disciplined.  This was due to the fact that, as a result of his actions, the first employee had sustained a serious injury, been unable to participate in any disciplinary hearing during his long term sickness and had subsequently been dismissed on capability grounds.  

On appeal, the EAT overturned the finding of unfair dismissal. In this case, the EAT found that the employer had shown a reasonable justification for the difference in treatment.  Firstly, the employer had led evidence to show that, had the first employee returned to work, he would, in all likelihood, have been dismissed for gross misconduct.  Secondly, the dismissal on the grounds of capability was a legitimate option open to the employer in the circumstances of the first incident.  

This case is a useful reminder to employers of the need to ensure consistency in their treatment of employees.  Where, however, the employer properly turns its mind to the specific circumstances of each case, and  has cogent reasons for treating employees differently, tribunals should be reluctant to interfere with that decision.  

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