Kier Islington Ltd v. Pelzman

In a conduct dismissal, an employment tribunal must assess whether the employer’s distinction between the present case and an earlier disciplinary case was irrational. It must not substitute its own view of the comparative seriousness of the incidents. Comparative cases must arise in truly parallel circumstances. Rational distinctions may include injury, property damage, reputational harm, or the presence of a safety precaution in the earlier case. The absence of a specific written warning does not necessarily make dismissal unfair where the employee knew the conduct was prohibited and the disciplinary procedure identified it as potentially gross misconduct punishable by summary dismissal.

The employee, a driver and loader, was summarily dismissed after throwing a kitchen-unit door from an upper-floor balcony. The door struck and injured an elderly resident and damaged her property. He admitted knowing that the practice, known as bombing, was prohibited, but had not reported the incident.

The Watford Employment Tribunal found that the employer had a genuine belief, based on reasonable grounds and a reasonable investigation, that the employee was guilty of misconduct. It nevertheless found the dismissal unfair, subject to a 75 per cent contribution, because a broadly similar 2005 incident had resulted in final written warnings and because the employee had not received a specific written warning of the possible penalty. The employer appealed.

1. Appeal allowed. The finding of unfair dismissal and the compensation order were set aside. The employee’s dismissal was declared fair.
2. In cases involving alleged disparity of disciplinary treatment, the relevant question was whether the employer’s reasoning was irrational. The tribunal had instead substituted its own assessment that the earlier incidents were more serious. That was an error.
3. The earlier and present incidents did not arise in truly parallel circumstances. The employee was unaware of the earlier disciplinary outcome and therefore had not been lulled into a false sense of security. The employer was entitled rationally to take account of the injury to the resident, damage to property, harm to its reputation with its client, the employee’s failure to report the accident, and the absence of a lookout in the present incident.
4. The tribunal was entitled to consider that management should have issued a further written warning emphasising the seriousness of bombing and its possible disciplinary consequences. That was not, however, decisive under section 98(4) of the Employment Rights Act 1996. The employer’s procedure listed gross negligence, bringing the employer into disrepute, and conduct jeopardising health and safety as examples of gross misconduct, and stated that gross misconduct might result in summary dismissal.
5. Although the employee had 30 years’ service, he knew that bombing was prohibited. The obvious risk created by throwing material from an upper-floor balcony, particularly without a lookout, meant that the absence of a specific written warning did not render dismissal outside the range of reasonable responses.

• Employment Appeal Tribunal: allowed the employer’s appeal, reversed the finding of unfair dismissal, set aside the compensation order, and declared the dismissal fair.
• Watford Employment Tribunal: found the dismissal unfair, subject to a 75 per cent contribution, and awarded compensation of £11,755.28.