What is the legal development?

In a recent case two employees were found guilty of gross misconduct for their involvement in the same incident, but only one was dismissed. The EAT concluded that the dismissal was fair, confirming that an employer must act reasonably towards each individual employee, regardless of what sanction has been applied to the other.

Only when there are truly parallel circumstances arising from the same incident, might it be unfair to treat employees differently, but these situations will be rare.

The EAT also commented that there is no ‘defence’ of provocation to a finding of misconduct – it is just a mitigating factor.

What does this mean in practice for employers?

Consistency of treatment will remain relevant if there is evidence of an employer having previously treated similar behaviour more lightly, or it raises a question as to what the true motive for the disciplinary action was.

Otherwise, once the particular misconduct has been established, each employee must be considered separately when making the second decision as to what a reasonable sanction might be.

It may also be reassuring to keep in mind that the way in which other employees have been treated does not necessarily dictate what the current decision should be.