Dismissals – Inconsistency in decisions

The Claimant was a prison officer who was dismissed for gross misconduct, for witnessing an assault by a prison officer on a prisoner and failing to report it. The Tribunal found his dismissal to be unfair because another prison officer who had also witnesses the assault had successfully appealed against his dismissal to the Internal Dismissal Appeal Board. Hence there was an allegation of inconsistency in treatment between the two prison officers, one of whom had been dismissed and the other who had not, for witnessing the same incident.

The Respondent appealed and the EAT allowed the appeal on the basis that the Tribunal had substituted its own decision for that of the employer. On the basis of the facts, the officer who had successfully appealed his dismissal to the Internal Appeals Board had seen less of the incident than the Claimant in the current case. The EAT considered that the question before the Tribunal was whether the decision of the Internal Dismissal Appeal Board was irrational; which it considered that it was not, because of the difference in what the two officers witnessed. Effectively, the EAT is saying that where there are cases of inconsistency, the employer’s decision will only be regarded as outside the range of reasonable responses if the decision can be considered irrational; and this is quite a high test to past.

This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.

For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.