The Acas Guide to handling disciplinary procedures highlights on page 27 that one of the points to be considered when deciding on any disciplinary action is “the penalty imposed in similar cases in the past”. In Doy v Clays Ltd, Doy was dismissed for two incidents of threatening behaviour, one towards two senior managers and the other by saying he would “expose this company to the media…”. An ET found the dismissal fair. Doy appealed arguing that the ET had not properly considered his case that his dismissal was unfair because of disparity in treatment, i.e. another employee had, on two different occasions, hit other employees, but she still had her job and did not even receive a verbal warning. The EAT upheld Doy’s appeal. The EAT held that the argument had been raised in Doy’s ET1, and at the ET hearing. It was not enough for the ET to summarise the employer’s submissions about the disparity argument. The ET should have made factual findings about Doy’s case on disparity and then explained how, if at all, those findings affected its analysis of the unfair dismissal claim. The case would therefore be reheard by a different tribunal.

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