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Treating employees inconsistently by dismissing one but not
dismissing another for the same misconduct can make the dismissal unfair unless
there are good reasons for distinguishing them. Paul v East Surrey District Health Authority established that the
question to be asked is whether the reasons for the differences in treatment
were ‘so irrational that no employer could reasonably have accepted them’.
L was one of four prison officers dismissed for their
involvement in and/or failure to intervene in an assault on a prisoner. One of
the four was reinstated on appeal but the dismissals of the other three,
including L, were upheld. L complained to a tribunal this inconsistent
treatment made his dismissal unfair. The reasons the appeal board gave for
reinstating the other officer were that he had been outside the room in which
the assault occurred and may not have seen it; he was working in a location he
rarely worked in with staff and prisoners he had never worked with; he knew
nothing of their working regime; there had been no handover or orientation to
familiarize him with the prison management style of the other three officers.
The EAT held that those were rational and acceptable
reasons for distinguishing L from the officer whose appeal was allowed. The
appeal board was familiar with the working environment and the prison officers’
code of conduct and was therefore in a good position to judge the relative
seriousness of the officer’s failures.