Reinstatement of one employee rendered another’s dismissal unfair
Mohammad v DHL Services Ltd ET/1100752/10
Date added: 24 February 2011
unfair dismissal | gross misconduct | workplace violence | reinstatement on appeal
Where two employees are dismissed fairly for the same misconduct, can the reinstatement of one render the other’s dismissal unfair?
Practical tips Employers should try to ensure consistency when dealing with misconduct issues, but should also take into account any mitigating factors. In particular, employers should have regard to how previous instances of similar misconduct have been dealt with. The case shows that, even though an employee’s dismissal can be initially fair, it can be rendered unfair by the employer’s treatment of another employee. Inconsistent treatment of employees will always lead to the risk of a tribunal claim. |
Mr Mohammad worked as a warehouse operative for DHL Services Ltd. On 6 January 2010, he was involved in an altercation with a colleague. Mr Mohammad needed some labels, which had been given to Mr Aziz. A supervisor, Mr Vidler, asked Mr Aziz to give some of the labels to Mr Mohammad. Mr Aziz then approached Mr Mohammad and, with no provocation, “shoved” the labels in his face. The two men pushed and shoved each other before being separated by a colleague. Mr Mohammad walked away, but on finding that he had blood on his nose, approached Mr Aziz again. The men were separated once more, after which Mr Mohammad walked back and punched Mr Aziz.
A manager told both men that, if they apologised to one another, they could go back to work and that no further action would be taken. Mr Mohammad was prepared to apologise but Mr Aziz was not, and they were both subjected to disciplinary action. The company’s disciplinary code provided that gross misconduct includes “physical violence”. Both men had disciplinary hearings on 20 January, and were dismissed the following day for gross misconduct, being given identical letters of dismissal.
Both men appealed against their dismissal. Mr Mohammad appealed on the grounds that he had no disciplinary record; that he had been prepared to apologise; and that he had been seriously provoked. Mr Aziz argued that he should not have been asked to give the labels to Mr Mohammad, that he had been a good employee for five years, and that the penalty was too harsh for the offence.
Both appeals were heard by the warehouse operations manager, Mr Pickering. Mr Mohammad’s appeal was held on 25 January, and was dismissed. Mr Pickering stated that he had to be fair and consistent. Mr Aziz’s appeal took place on 1 February, and was upheld. Although the letter confirming Mr Aziz’s reinstatement did not give reasons for the decision, Mr Pickering gave evidence that there was a mitigating circumstance, which was Mr Aziz’s assertion that he had been provoked into the incident by comments made by Mr Mohammad about his sister, a point that had been mentioned in Mr Aziz’s original statement but had not been put to Mr Mohammad. Mr Pickering also gave evidence that Mr Aziz acted “in anger”, whereas Mr Mohammad’s punch was premeditated.
Mr Mohammad claimed unfair dismissal. It was accepted throughout proceedings that, if Mr Aziz had not been reinstated, both dismissals would have been fair. However, given Mr Aziz’s reinstatement, the tribunal had to determine whether or not the disparity of treatment between the two men resulted in Mr Mohammad’s dismissal being unfair. The tribunal found that the two men’s offences had very little distinction between them, and that it was “very much six of one and half a dozen of the other”.
The tribunal found that the company gave little or no consideration, at the time of Mr Aziz’s reinstatement, to questions of fairness regarding Mr Mohammad, whose appeal by that stage had already been dismissed. Given the similar levels of misconduct by the two men, the tribunal considered that the company needed to show good reasons why it felt that it was equitable to treat them differently. The tribunal found that the company did not discharge that burden. It was influenced by inconsistencies in the company’s witness evidence, and stated that, if anything, Mr Mohammad had acted more properly after the incident than Mr Aziz.
The tribunal found that the company’s decision to treat the two men differently was irrational and outside the reasonable band of responses, and that Mr Mohammad’s dismissal was unfair. It awarded him total compensation of £10,171.50, after a 50% reduction for contributory conduct.
Additional resources
- Disciplinary procedure HR & Compliance Centre's model disciplinary procedure, which also contains notes on the relevant legislation and case law.
- How to handle appeals against disciplinary decisions Handle disciplinary appeals properly with our "how to" guide.