Inconsistent disciplinary sanctions were justified.4 November 2011
General Mills (Berwick) Limited v Glowacki
In this case, the Employment Appeal Tribunal (EAT) have opened up the possibilities for employers to justify disparate responses to disciplinary offences.
Mr Glowacki, an electrician, was summarily dismissed for gross breach of health and safety procedures after attempting to repair machinery (a “palletiser”) by disabling certain of its sensors and climbing inside it. The palletiser had warnings attached to it but these were ignored by Glowacki.
Glowacki claimed unfair dismissal and the Newcastle upon Tyne Employment Tribunal found in his favour. Interestingly, they found that the employer’s dismissal was for a fair reason and was within the band of reasonable responses for an employer to take in the circumstances. However, the Tribunal found that Glowacki had been treated differently to another employee who had been in a similar situation (gross breach of health and safety) in 2009 but who had not been dismissed for gross misconduct. The Tribunal concluded that the cases were “factually indistinguishable” and the difference in treatment had not been explained by the employer; thus Glowacki’s dismissal was unfair.
The employer appealed and was successful. The EAT made its own findings. Crucially, it accepted the employer’s explanation for the difference in treatment. The 2009 incident had led to very serious injury to the other employee such that they were unable to take part in a disciplinary process; that employee was ultimately dismissed on capability grounds. The employer set out that the other employee would have been summarily dismissed were it not for their serious injury.
The EAT held that there was a sufficient basis for the difference in treatment bearing in mind the “range of responses reasonably open to an employer faced with those facts”.
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