Scottish Prison Service v Laing

An Employment Tribunal may find a dismissal unfair because of inconsistent sanctions only where the employer's distinction between comparators in truly parallel circumstances is so irrational that no reasonable employer could have accepted it. The Tribunal must assess the employer's decision, not substitute its own factual view, including its own assessment of CCTV evidence, for that of the disciplinary appeal body.

For contributory conduct under ERA, the relevant question is whether the employee's own blameworthy conduct caused or contributed to dismissal. The treatment of another employee is relevant to fairness but not to that assessment.

A prison officer was dismissed for gross misconduct after failing promptly to stop, or report, another officer's assault on a prisoner. An internal dismissal appeal board upheld his dismissal. It reduced the dismissal of another officer involved in the same incident to a final warning, on the basis of that officer's limited knowledge of the area, possible restricted view and uncertainty about what he had seen.

The Employment Tribunal held that the cases were truly parallel and that the different outcome was irrational. It found the dismissal unfair, reduced compensation by 65% for contributory conduct, and reserved pension loss for a further hearing or written submissions.

The Scottish Prison Service appealed against unfair dismissal and the level of contribution. The employee cross-appealed on contribution. The central issue was whether the Tribunal had impermissibly substituted its own view for that of the internal appeal board.

1. Appeal allowed. The Employment Tribunal's finding of unfair dismissal was overturned. The relevant question was whether the internal dismissal appeal board's decision to retain the comparator but dismiss the claimant was irrational, not whether the Tribunal would have reached the same decision.

2. The board was familiar with the prison environment, the governing standards and the seriousness of failing to prevent or report an assault on a prisoner. It had considered both cases and gave reasons for regarding dismissal of the other officer as too harsh. Those reasons included the officer's unfamiliarity with the area and staff, possible limits on what he could see, and uncertainty about his awareness of the assault.

3. The Tribunal had reassessed the CCTV footage and concluded that the board's view of what the other officer could have seen was wrong. That was an impermissible substitution of its own view. Any error in the board's assessment would have had to be blatant before the Tribunal could intervene. The high threshold of irrationality was not met, and dismissal fell within the range of reasonable responses.

4. On contributory conduct, the inquiry under section 123(6) of ERA concerns the claimant's conduct alone. The claimant's failure to take action to stop the assault and to report it wholly caused his dismissal. Had contribution required determination, the just and equitable deduction would have been 100%, rather than 65%.

5. The Tribunal was entitled, as a case-management matter, to defer quantification of pension loss pending further information. In light of the allowance of the appeal, that issue was academic.

• Employment Appeal Tribunal: allowed the employer's appeal and overturned the finding of unfair dismissal: [2013] UKEAT 0060_12_1405.
• Employment Tribunal: found the dismissal unfair because of inconsistent treatment, assessed contributory conduct at 65%, and reserved pension loss for further hearing or written submissions.