Difference in treatment
Labour & European Law Review Weekly Issue 250 05 January 2012
Having established the reason for dismissing someone, Tribunals also have to take into consideration whether it was reasonable for the employer to rely on it, when deciding whether a dismissal was fair or not. In General Mills (Berwick) Ltd v Glowacki, the Employment Appeal Tribunal (EAT) said it was not unfair for an employer to dismiss one employee but not the other in similar circumstances, when there was a good reason to explain the difference in treatment.
Mr Glowacki, an electrician who had worked for General Mills for three years, was asked on 6 July 2010 to repair a machine known as a “palletiser”. He failed to observe the warning notices on the machine which the company considered a serious infringement of health and safety procedures.
He was asked to attend a disciplinary hearing, where he was found guilty of gross misconduct and dismissed. His appeal and a further appeal against the rejection of his grievance were also dismissed.
He claimed unfair dismissal and race discrimination on the basis that the company had treated other workers, who were British, differently from him on the basis of his Polish national origins.
The Tribunal dismissed his claim of race discrimination and held that the company had established a legitimate reason for dismissing him - gross misconduct.
It was satisfied that the company had a genuine belief, following an investigation, that he was guilty of misconduct not least because Mr Glowacki himself had admitted that he had overridden the safety features on the machine.
Dismissal was within the range of reasonable responses open to the employer not least because Mr Glowacki had failed to acknowledge he had acted in breach of safe working practices.
However, it went on to compare the circumstances of his treatment with those of another employee, Mr Stevens, who had not been dismissed, although he had done something similar and been badly injured in the process a year previously. The Tribunal said that as the cases were factually indistinguishable, Mr Glowacki’s dismissal was unfair.
The EAT, however, disagreed. The Tribunal had already accepted the reason why Mr Glowacki was treated differently to Mr Stevens and had found that, had he not gone off sick and later been dismissed for incapacity, he would have been subject to disciplinary proceedings and sacked for a breach of health and safety rules.
The EAT held that the question was not whether the Tribunal thought that there was a good enough reason to dismiss Mr Glowacki for gross misconduct, but whether a reasonable employer would have gone ahead and dismissed him.
Given that the Tribunal had found that the reason why Mr Stevens had been treated differently was because of his injury (a reason that was legitimately open to the employer), it was inconsistent for the Tribunal to then hold that the difference in treatment had not been sufficiently explained by the company.
The Tribunal’s conclusion could not therefore be sustained. As the dismissal could not be described as unfair on the basis of disparate treatment, there was no other basis on which it could be held to have been an unfair dismissal.