The employment appeal tribunal has handed down a useful decision on whether inconsistent treatment of employees can lead to a finding of unfair dismissal.
The case, Levenes Solicitors v Dalley, concerned a solicitor who had missed a court deadline and was dismissed. A few years earlier another solicitor had made the same mistake but not been dismissed.
The circumstances of the two cases were different and the tribunal had agreed the procedures and processes were fair and that dismissal was within the band of remedies open to the firm – before deciding the inconsistent treatment meant it was unfair.
But Judge Richardson said the statutory test is “whether it is reasonable for the employer to dismiss the employee in question” and “tribunals must take care not to allow questions of disparity with earlier treatment to supplant the statutory test”.
He also overturned the tribunal’s finding of race discrimination, saying that the question of law is whether the dismissal was “wholly or in part, consciously or unconsciously on the grounds of race”. As it was not “the fact that Levenes may earlier have treated another employee of another race leniently whether reasonably or otherwise was not to the point”.
The case provides further support for the earlier cases by the Employment Appeal Tribunal and the Court of Appeal in which the principle of flexibility to consider individual circumstances was enshrined.
