Levenes Solicitors v Dalley

Employment tribunals must assess dismissal by reference to the particular circumstances of the individual employee. Comparisons with other cases must not become rules of thumb or a tariff for misconduct. Cases may not be truly comparable where the disciplinary allegations materially differ. A finding that dismissal was not tainted by race or sex does not necessarily exclude unlawful discrimination; reasoning that treats it as doing so may revive an outdated approach. The court’s substantive observations were provisional because the appeal was dismissed after the unrepresented appellant failed to attend and no oral argument was heard.

Ms Dalley, a solicitor employed by Levenes Solicitors, was summarily dismissed after failing to serve a personal injury claim in time and being absent from work. The Employment Tribunal accepted those matters as potentially sufficient for dismissal but upheld complaints of unfair dismissal and race discrimination because another solicitor had received more favourable treatment after failing on three occasions to serve proceedings in time.

The Employment Appeal Tribunal allowed Levenes’ appeal, holding that the cases were not truly comparable and also addressing the race-discrimination reasoning. Permission to appeal to the Court of Appeal was granted, but Ms Dalley sought an indefinite adjournment, did not attend, and was unrepresented. The central issues concerned the relevance of comparators to dismissal reasonableness and the effect of differential treatment under section 54A(2) of the Race Relations Act 1976.

1. Appeal dismissed. The court refused an indefinite adjournment. The appellant had had sufficient opportunity to obtain representation or prepare her own case, and the court considered that it was open to dismiss the appeal without further hearing.
2. Lord Justice Sedley stated that the Employment Tribunal’s findings were predicated on differential treatment of similar cases. The Employment Appeal Tribunal was entitled to regard the cases as not truly comparable. The appellant faced two disciplinary charges: failure to serve a claim in time and absenteeism. A solicitor who missed deadlines was not necessarily comparable with one who also failed, without good reason or excuse, to attend work.
3. Tribunals must not determine the reasonableness of dismissal by applying a tariff or rigid comparison with other cases. The focus remains the particular circumstances of the individual employee, with sufficient flexibility retained for the circumstances of each case. Sedley LJ relied on this court’s treatment in Paul v East Surrey District Health Authority [1995] IRLR 305 of the warning in Hadjioannou v Coral Casinos Ltd [1981] IRLR 352.
4. The court did not endorse without further consideration the Employment Appeal Tribunal’s reasoning that a finding that dismissal was not tainted by race or sex excluded the possibility that it was taken on racial grounds. Sedley LJ considered that formulation capable of reverting to a concept of discrimination which was no longer the law. The point remained provisional because the court had heard no oral argument. Lord Justice Rimer and Mr Justice Forbes agreed with the judgment.

1. Court of Appeal (Civil Division): In [2008] EWCA Civ 69, the court refused an indefinite adjournment and dismissed the appeal. It stated a provisional view that the cases were not truly comparable and cautioned against endorsing part of the Employment Appeal Tribunal’s race-discrimination reasoning.
2. Employment Appeal Tribunal: Allowed Levenes’ appeal and set aside the Employment Tribunal’s findings of unfair dismissal and race discrimination.
3. Employment Tribunal: Found that the dismissal was otherwise reasonable but upheld the complaints because of differential treatment of another solicitor in allegedly comparable circumstances.