Doy v Clays Ltd

An Employment Tribunal must expressly determine a pleaded and potentially relevant disparity-of-treatment argument in an unfair-dismissal claim. It must make sufficient findings about the alleged comparator conduct, managerial knowledge and any response, then explain whether the cases were truly or sufficiently similar and how the comparison affected fairness.

Recording only the employer’s submissions does not give adequate reasons. The fact that a claimant’s union representatives did not raise the point internally, or that an unrepresented claimant did not develop its legal significance, does not remove the employer’s or Tribunal’s responsibility to consider it on its merits.

The Claimant was dismissed for alleged threatening behaviour in two incidents. He claimed unfair dismissal, relying in part on allegations that a female employee had committed two acts of physical violence without disciplinary action.

The Employment Tribunal at Bury St Edmunds dismissed the unfair-dismissal and holiday-pay claims. It later refused reconsideration. Although the disparity issue appeared in the ET1, was addressed in the Respondent’s submissions and was raised again on reconsideration, the Tribunal made no findings about it.

The Claimant appealed. The central issue was whether the Tribunal had adequately dealt with the pleaded inconsistency or disparity argument when deciding the fairness of dismissal.

1. Appeal allowed. The Employment Tribunal erred in law by failing to deal expressly with the Claimant’s pleaded disparity argument. Merely recording the Respondent’s submissions did not explain why that argument had failed or how it affected the statutory assessment of fairness.

2. A reasoned assessment required findings on what the proposed comparator did, whether managers knew of that conduct, what response they made, and what the dismissing and appeal managers knew. If the alleged conduct and managerial knowledge were established, the Tribunal had to compare the conduct with the Claimant’s conduct and decide whether the cases were truly or sufficiently similar.

3. The Tribunal also had to focus on the actual words used in the second incident and assess their objective culpability. It could not resolve the issue through broad descriptions of the conduct as extreme threats without the necessary factual analysis.

4. The union representatives’ failure, if any, to raise disparity during the internal procedure was relevant but not decisive. It did not absolve either the employer or the Tribunal from considering a relevant point on its merits. Nor could the Tribunal treat the Claimant’s self-representation or any limited development of the point as excusing its failure to address an issue clearly raised in the ET1.

5. The Tribunal could not itself substitute a finding of unfair dismissal. The existing findings could not satisfactorily be preserved because the further factual inquiry was integral to the overall fairness assessment. The case was remitted to a differently constituted Employment Tribunal for a complete rehearing. The appeal against refusal of reconsideration was academic, although the Tribunal stated that it would have been allowed if standing alone.

• Employment Appeal Tribunal: allowed the appeal against the dismissal of the unfair-dismissal claim and remitted the matter for a complete rehearing before a different Employment Tribunal.
• Employment Tribunal, Bury St Edmunds: dismissed the claims for unfair dismissal and holiday pay in a judgment sent on 13 February 2016, and refused reconsideration in a decision sent on 9 March 2017.