Kay v Cheadle Royal Healthcare Ltd (t/a Affinity Healthcare)

In an unfair dismissal claim, the tribunal must determine whether dismissal was reasonable in the circumstances under section 98(4) of the Employment Rights Act 1996. Comparisons with another employee require particular care. Disparity may be relevant where the cases are truly parallel, but inconsistent treatment does not automatically make dismissal unfair. The tribunal must remain focused on whether dismissal of the claimant was reasonable. An Employment Appeal Tribunal may interfere with the tribunal’s evaluation of the evidence only on a question of law. A perversity challenge requires an overwhelming case that no reasonable tribunal, properly applying the law to the evidence, could have reached the decision.

The claimant, a deputy ward nurse manager, was summarily dismissed for gross misconduct after an investigation into prolonged bullying of a doctor. She argued that her dismissal was unfair because another staff nurse, Victoria Thomas, was allegedly involved in the same bullying but was not disciplined for bullying.

The Employment Tribunal accepted that Thomas had been implicated but found that her involvement was peripheral and that she was less blameworthy. It held that the disparity did not make the dismissal unfair. The claimant appealed on the basis that the tribunal’s conclusion was legally erroneous and perverse.

Appeal dismissed.

1. The governing question was whether the employer acted reasonably in treating the reason for dismissal as sufficient, applying section 98(4) of the Employment Rights Act 1996. The tribunal correctly directed itself to that question.
2. Arguments based on disparity must be scrutinised with care. Under Hadjioannou v Coral Casinos [1981] IRLR 352, comparison may be relevant where employees were led to expect certain conduct would be overlooked, where it casts doubt on the genuineness of the stated reason, or where decisions in truly parallel circumstances support the conclusion that dismissal was unreasonable. The approach was endorsed in Paul v East Surrey District Health Authority [1995] IRLR 305.
3. The relevant comparison was whether Thomas’s case was truly parallel. The evidence permitted the tribunal to find that the claimant was the principal source of the doctor’s distress, that Thomas had been heavily influenced by her, and that Thomas was less blameworthy. The tribunal’s assessment was therefore open to it.
4. The fact that the tribunal criticised the employer for failing to discipline Thomas did not determine whether dismissal of the claimant was unfair. On the tribunal’s findings and the matters recorded in the dismissal letter, dismissal was plainly capable of being justified.
5. Under section 21(1) of the Employment Tribunals Act 1996, the appeal lay only on a question of law. Applying Yeboah v Crofton (2002) IRLR 634, the alleged evidential error had to be perversity of the stringent kind identified by the Court. That threshold was not met.

1. Employment Tribunal, Leeds: rejected the claimant’s complaint of unfair dismissal in a judgment dated 27 September 2010.
2. Employment Appeal Tribunal: dismissed the appeal, holding that the tribunal had applied the correct legal test and that its conclusion on disparity was not perverse.