Disparity of treatment on dismissal can be fair

In East Riding of Yorkshire v Cowton, several employees at a care home had all failed to comply with a particular patient's 'care plan' and had fed her un-pureed food which could have caused her to choke. The claimant (unlike the other employees) had just been taken through the employer's 'capability procedure', first informally and then formally, because of concerns that she did not carry out patients' 'care plans' properly. As a result, when this case came to light, she was dismissed, whereas the others were neither dismissed nor disciplined but given counselling on their working practices.

The EAT said that the employment tribunal had been right to consider that this disparity of treatment was a reasonable response by the employer, thinking that, if the capability procedure had not improved her conduct, she could not be trusted again, whereas the other employees might learn from a warning. Her dismissal was fair.

Points to note –

  • Tribunals have been warned by the EAT to scrutinise arguments based on disparity of treatment with particular care. In an unfair dismissal claim, it is the circumstances of the particular case that matter much more than any similarities between one case and another. The only question to be asked is –‘was the employer reasonable in forming the view that one employee was in a different position from the others?’
  • Fair procedures are vital if employers are to avoid unfair dismissal claims. We shall be happy to advise further, particularly on the impact of the new Acas Code on disciplinary and grievance procedures