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UNFAIR DISMISSAL: Are tribunals being consistent about consistency?

05 February 2016  

Phil Allen looks at three recent cases in which the claimants argued their dismissal was unfair because they were treated more harshly than a colleague involved in the same incident

When considering the fairness of a dismissal for misconduct, one thing an employment tribunal can take into account is inconsistency. A dismissal which would otherwise be perfectly fair can be rendered unfair if the employer has treated the person dismissed differently from another employee in comparable circumstances. An argument will often arise where two employees are involved in the same incident and one is dismissed but the other is not. Three recent cases have examined this issue and also raise the question of whether there is a consistent approach by employment tribunals to inconsistent treatment.

Additional Info

  • Case(s) Referenced:

    Cain v Leeds Western Health Authority [1990] IRLR 168

    Conlin v United Distillers CA [1994] IRLR 169

    Epstein v Royal Borough of Windsor and Maidenhead [2007] UKEAT/0250/07

    Hadjioannou v Coral Casinos Ltd [1981] IRLR 352

    MBNA Ltd v Jones [2015] UKEAT/0120/15

    Newbound v Thames Water Utilities Ltd [2015] EWCA Civ 677

    Paul v East Surrey District Health Authority [1995] IRLR 305

    Westlake v ZSL London Zoo [2015] ET 2201118/2015

    Wincanton Plc v Atkinson [2011] UKEAT/0040/11