The EAT has handed down a useful decision dealing with inconsistent sanctions by employers during the dismissal process.
A firm of solicitors dismissed one of their solicitors, mainly for missing a limitation deadline. At least one other solicitor had not been dismissed for that reason in the past.
Overturning a finding of unfair dismissal, HHJ Richardson held that the authorities, in particular Hadjioannou v Coral Casinos Ltd  IRLR 352, make clear that questions of disparity with earlier treatment must not be allowed to supplant the statutory test under ERA s98(4). As the ET had found that the substantive treatment of the Respondent was fair, the procedures were reasonable and the dismissal was amongst the band of reasonable responses, by finding that the Respondent was unfairly dismissed it had "lost sight of the true question posed by the statute".
Also overturning the ET's findings of discrimination, the EAT stated at paragraph 37 that the key question was whether the decision to dismiss was wholly, or in part, on grounds of race. If the burden of proof transferred, the employer had to show that the decision to dismiss was not taken on racial grounds. If they succeeded in proving that matter, the fact that they might have previously treated another employee of a different race leniently was not to the point.
Levenes Solicitors v Dalley