If an employee is dismissed for gross misconduct of which he says his manager is aware, does it make his dismissal unfair if the manager is not also dismissed?  The tribunal in SPS Technologies Ltd v Chughtai said yes, but this decision was overruled by the EAT on the basis that there was no evidence to show that the line manager was aware of the misconduct.  The two cases were not so similar that the dismissal of the subordinate employee was unfair.

The claimant was employed as a controller in a laboratory, recording the results of stress durability tests conducted on aircraft parts.  Unsurprisingly, given the safety critical nature of the business, the disciplinary policy included falsification of records as an example of gross misconduct.

A whistleblowing complaint was received about fabrication of results, naming the claimant and adding that his line manager would also be aware of it.  After a thorough investigation, during which thousands of records were analysed and numerous employees interviewed, including the claimant three times and his line manager four times, the claimant, who admitted falsifying records, was dismissed.

The claimant said that the falsification had been committed with the knowledge and approval of his line manager.  Some of the employees interviewed during the investigation also supported his account that management either were, or ought to have been, aware that records were being routinely falsified.  However, the manager denied this and no corroborative evidence was found to implicate him, so no action was taken against him.

The tribunal found that the claimant had been unfairly dismissed – on the basis that the failure to suspend the manager undermined the disciplinary process and a reasonable employer would have concluded that the claimant was telling the truth and would not have dismissed him.  This decision was overturned by the EAT.

The question of whether the line manager should have been suspended was irrelevant to the fairness or otherwise of the claimant's dismissal.  That dismissal was clearly within the range of reasonable responses.  The fact that the tribunal believed the claimant (and thought the employer should have) was an example of substitution of their view for that of the employer, something which is not permitted in unfair dismissal cases.  The question was whether the disparity of treatment between the claimant and the line manager was outside the range of reasonable responses.  One (the claimant) was guilty on his own admission whereas nothing was proved to the employer's satisfaction against the other.  In the circumstances, therefore, the employer's differing response to the two employees was not irrational.