General Mills (Berwick) Ltd v Glowacki

In an unfair dismissal case involving allegedly inconsistent disciplinary treatment, the question is whether a reasonable employer could properly dismiss the claimant despite having treated a genuinely comparable employee differently. The tribunal must apply the range of reasonable responses standard and assess whether the difference has a reasonable explanation. A tribunal cannot treat disparity as unexplained where its own findings establish that the comparator would ordinarily have received the same disciplinary sanction, but circumstances such as serious injury or incapacity prevented that process. Different treatment may then fall within the range of reasonable responses open to the employer.

An employee was summarily dismissed for gross misconduct after disabling safety sensors and entering machinery contrary to warning notices. The Employment Tribunal accepted the genuineness of the misconduct finding, the fairness of the investigation and appeals, and that dismissal was within the range of reasonable responses.

The Tribunal nevertheless found unfair dismissal because another employee, Mr Stevens, had committed a closely comparable health and safety breach but had not been dismissed for misconduct. On review, it maintained that conclusion. The employer appealed, arguing that the Tribunal’s findings showed that Mr Stevens would have been disciplined and possibly dismissed but for his serious injury and resulting incapacity. The central issue was whether that difference supplied a sufficient justification under Employment Rights Act 1996, section 98(4).

1. Appeal allowed. The Employment Appeal Tribunal gave a unanimous judgment and dismissed the unfair dismissal claim.
2. Under section 98(4) of the Employment Rights Act 1996, where the employer has established conduct as the reason for dismissal, the issue is whether the employer acted reasonably in treating it as sufficient reason for dismissal. The assessment applies the familiar range of reasonable responses standard.
3. Where a tribunal finds that two cases are truly parallel or closely comparable, that is a finding of fact which cannot ordinarily be revisited on appeal. The tribunal must then decide whether the employer has shown a reasonable justification for the different treatment.
4. The comparison is not confined to asking whether the claimant’s dismissal appears unfair when viewed against the comparator’s outcome. The question is whether a reasonable employer could properly have dismissed the claimant while treating the comparator differently.
5. The Tribunal had found that Mr Stevens would ordinarily have been subject to disciplinary proceedings and would have been dismissed for gross misconduct, but that his serious injury left him unable to participate in the process. His employment was instead terminated on capability grounds. It had also found that this course was legitimately open to the employer.
6. Those findings necessarily established a reasonable explanation for the different treatment. It was therefore inconsistent for the Tribunal to conclude that the disparity was unexplained or insufficiently explained. No other basis for unfair dismissal remained.

• Employment Tribunal, Newcastle upon Tyne: found the dismissal unfair because of disparity between the treatment of the claimant and Mr Stevens, and confirmed that conclusion on review in August 2011.
• Employment Appeal Tribunal: allowed the employer’s appeal and dismissed the unfair dismissal claim.