If a worker is dismissed after committing a disciplinary infraction, it will not be enough for him to point to other workers who were treated more leniently in pleading a case for unfair dismissal.
This principle may have led to a fair decision in this particular case. The wider implicaton however of the decision by the Employment Appeal Tribunal (EAT) relating to inconsistencies in the disciplining of workers by employers may be to make it harder for workers to prove their cases at tribunal.
In the case of Levenes solicitors v Dalley, a solicitor, Ms Dalley (a black Afro-Caribbean West Indian Jamaican) missed a deadline. This had happened in the past with at least one other solicitor in the practice, but despite the other solicitor, Ms Onwukwe (a black african) having missed a number of deadlines, her case lead neither to dismissal nor even to any disciplinary action. Dalley was dismissed after attempts by Levenes to reach a compromise agreement to leave with Onwukwe failed.
At first the tribunal decided that the dismissal was substantially fair, the disciplinary procedures having been properly carried out. It further decided that the dismissal was amongst the 'band of reasonable responses' open to the Respondent, as indicated by the observations of the Employment Appeal Tribunal in the case of Iceland Frozen Foods v Jones.
The tribunal also found that racial or sexual motives were not involved in the decision to dismiss Dalley. However, because of the difference in treatment meted out to the two employees, the tribunal found that Dalley had been unfairly dismissed. On the back of this decision on the disparity of treatment between the two employees, Ms Dalley's claim for racial discrimination was also upheld.
The EAT decided however that the tribunal had not properly interpreted the law. The tribunal had itself in fact decided the case inconsistently.
There were in fact differences between the cases of Dalley and Ms Onwukwe - who had slipped up 4 times and yet not been dismissed - that explained the difference in treatment. Ms Onwukwe's missing of deadlines came at a particularly busy time for the business, so Mr Levene found no fault with Ms Onwukwe's failures. In contrast, Ms Dalley's failure to meet her deadline was seemingly her own fault. This constituted serious professional negligence. Furthermore Ms Dalley had committed other disciplinary offences such as returning late from vacation without prior warning.
The relevant Statute in regard to the unfair dismissal claim is the Employment Rights Act 1996 (ERA) section 98 which sets out what an employer must show in order for the dismissal to be fair.
In ERA s98(4) the employer has to show he acted reasonably, with equity and after having weighed the substantial merits of the case.
The EAT's decision to disregard the disparity of treatment between Dalley and another employee, was influenced to a large extent by previous caselaw, most notably that of Hadjioannou v Coral Casinos Ltd (1981) where the Tribunal there accepted that arguments put on the basis of disparity were of limited significance when determining the fairness of a dismissal. This approach in Hadjioannou was approved by the Court of Appeal in Paul v East Surrey District Health Authority (1995).
The EAT then addressed the question of whether Dalley had been discriminated against on racial grounds. The EAT held that if the employer showed, as had been accepted by the tribunal, that Dalley had not been discriminated against because of her race, then the fact she had been treated differently to another employee of a different race was irrelevant.
The EAT set aside the tribunal's findings of unfair dismissal and racial discrimination against Levenes solicitors.
© Workrep 13 / 12 / 2006