Monday, 10 December 2012

Procedural Fairness and Disparity of Treatment

[Thanks to Ed McFarlane of Deminos HR for preparing this case summary]
Is it perverse for an employment tribunal not to regard a dismissal as a reasonable response, if misconduct is committed by an employee in a safety critical role?

Yes, says the EAT in SPS Technologies Ltd v Chughtai, overturning a majority tribunal decision.

The Claimant was dismissed after admitting falsifying test data for the Respondent aerospace manufacturer. The employment tribunal found by a majority, the employment judge dissenting, that the dismissal was unfair. The majority held that dismissal was outside the band of reasonable responses, and found disparity of treatment by the employer of the Claimant and his supervisor, after the Claimant asserted that data falsification was 'common practice'. This was not backed up by the employer's thorough investigation.

The EAT held that the majority had fallen into error, having regarded the Claimant's evidence on falsification at tribunal as credible, they had substituted their view for that of the employer as to whether falsification was common practice. A disparity argument fell down as the employer would have dismissed anyone falsifying test data, but it reasonably found that there was no 'common practice' of falsification, so no action was taken against others. and the employer's clear evidence was that anyone falsifying data would be dismissed. The majority's view that the Claimant's dismissal was unfair as it was outside the band of reasonable responses was held to be perverse, with the appeal curing a procedural defect at the dismissal stage.

The EAT also overturned a finding of 30% contribution for conduct and no Polkey reduction, finding - like the employment judge - 100% on both contribution and Polkey.

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