Carmelli Bakeries v Benali shows that even where an employee admits gross misconduct, there is no guarantee that the resulting dismissal will be fair. The EAT upheld a Tribunal finding that an employee had been unfairly dismissed and victimised when he was summarily dismissed after using non-kosher jam at a strictly kosher bakery. The EAT found that his grievance and discrimination claim three years earlier, followed by on-going requests for reasonable adjustments in relation to his disability, had led the employers to see him as a "problem employee" as a result of which they did not consider any of the surrounding circumstances (in particular, the employee's longstanding clean disciplinary record) which might have led them to show some leniency.

On the same theme, in Brito-Babapulle v Ealing Hospital NHS Trust, the EAT held that the fact that the employer was entitled to regard an employee's behaviour (treating private patients while on sick leave) as gross misconduct did not inevitably answer the question of fairness – whether the dismissal was within the "band of reasonable responses" by the employer. There has to be some consideration of whether mitigating factors (long service, the consequences of dismissal and having a previously unblemished record were mentioned) may be such that dismissal for gross misconduct is not reasonable.

In Scottish Prison Service v Laing, on the other hand, the employer was initially found to have unfairly dismissed a prison officer for gross misconduct (failing to take appropriate action when an incident occurred); largely because another officer who was present had his appeal upheld and was issued with a final written warning. The circumstances of the two employees were very similar:

  • both were experienced (the claimant had 17 years' and the other 20 years' service)  
  • the two officers were charged with failing to deal appropriately with the same incident and failing to report it and both allegations were proved against both of them  
  • both were subject to the same standards of behaviour and codes of conduct  
  • both essentially had the same view of the incident  
  • neither colluded in the incident and they were both unprepared for it.

But the test in cases where inconsistency is put forward as a reason for unfairness is high – whether the different treatment is so irrational that no reasonable employer could have taken the decision in question. Here there was one key difference – the prison appeals board found as a fact, having watched a video of the incident, that the other officer could not see as much of the incident as the claimant. That fact was enough for the EAT to decide that the Tribunal (which had also viewed the video) had wrongly substituted its own view for that of the employer and had not asked itself whether the action taken was within the range of reasonable responses from an employer. The EAT therefore substituted a finding that the dismissal was fair.