General Mills (Berwick) Limited v Glowacki UKEAT/2011/0139

Mr Glowacki worked as an electrician for General Mills.  When making a repair he disabled certain sensors and entered the body of a machine to repair it.  GM regarded this as a serious breach of health and safety procedures and dismissed him for gross misconduct after a disciplinary procedure.  His appeal against dismissal was rejected and he brought a  successful claim before a tribunal for unfair dismissal.  Although the decision was within the range of reasonable responses another employee - S - who the year before had been guilty of a serious breach of health and safety procedures had not been dismissed for gross misconduct although he had suffered a debilitating injury.  The tribunal considered the cases were factually indistinguishable and the employer’s different responses in each case rendered Mr Glowacki’s dismissal unfair.  GM appealed.   

The EAT allowed the appeal on the basis that the tribunal had failed to have proper regard to GM’s explanation for the difference in treatments.  S had been so badly injured that he was eventually dismissed for incapacity.  Were it not for his absence due to his injuries he would have been subject to disciplinary proceedings and also dismissed for gross misconduct.  GM had therefore established a reason why S was treated differently.  There being no other basis on which the dismissal could have been unfair, the EAT rejected Mr Glowacki’s claim.

Key point: Where employers do apply different or inconsistent sanctions for the same misconduct, they have to be able to explain the basis of the disparate treatment otherwise the dismissal may be unfair.