Case of the week: Kay v Cheadle Royal Healthcare Ltd t/a Affinity Healthcare

Kay v Cheadle Royal Healthcare Ltd t/a Affinity Healthcare


Mrs Kay was employed at Cheadle Royal Hospital as a deputy ward nurse for three years until her dismissal in October 2009. She worked on a ward with a staff nurse, Ms Thomas. The ward was attended by Dr Al-Amin.

In July 2009, Dr Al-Amin made a formal complaint of bullying against Mrs Kay. Following an investigation and a disciplinary hearing, Mrs Kay was summarily dismissed for gross misconduct for bullying Dr Al-Amin. The investigation showed that Ms Thomas was heavily implicated in the bullying, but no disciplinary proceedings were taken against her. Mrs Kay brought a claim for unfair dismissal.


One of the arguments advanced by Mrs Kay was that Ms Thomas was also guilty of bullying Dr Al-Amin, but was not disciplined and the dismissal was therefore unfair when compared with Ms Thomas’s treatment.

The tribunal held that the dismissal was fair. The tribunal found that as Ms Thomas’ role in the bullying was peripheral, and that this was sufficient for the employer to treat Ms Thomas and Mrs Kay differently. The employer was entitled to conclude that Ms Thomas was not as much to blame as Mrs Kay.

Mrs Kay appealed to the EAT. The EAT reiterated that the question is essentially whether or not it was reasonable to dismiss the employee whose claim is under consideration, and that tribunals should concentrate on this question and treat arguments based on disparity of treatment with care.

However, evidence of decisions made by employers in truly parallel circumstances may be sufficient to support an argument that dismissal was not reasonable. In this case, the tribunal was entitled to reach the decision that it did. While there was evidence that Ms Thomas was implicated in the bullying, there was plainly a difference between the evidence relating to Mrs Kay and Ms Thomas.


A dismissal will be unfair on the grounds of inconsistent treatment only on rare occasions. A disparity of treatment might be relevant to a tribunal’s consideration of an unfair dismissal claim if there is evidence:

  • that employees have been led by an employer to believe that certain categories of conduct will be overlooked or not lead to dismissal;
  • of decisions made in other cases that support the inference that the purported reason stated by the employer is not the real or genuine reason for dismissal; and
  • of decisions made by the employer in truly parallel circumstances that may be sufficient to support an argument that it was not reasonable on the part of the employer to dismiss.

However, the employer could be acting reasonably in treating differently employees guilty of the same offences where there are mitigating circumstances, or the employee’s attitude is such that it is unlikely that such behaviour would be repeated.

Although the employer should always consider how previous similar situations have been dealt with, the allegedly similar situations must truly be similar for consistency to be relevant to the reasonableness of the dismissal.

Even if there is clear inconsistency, employers are still entitled to a degree of latitude. For example, if the employer has been unduly lenient in respect of particular behaviour in the past, dismissal may still be reasonable if the employer decides to take a harder line, provided that employees have not been led to believe that the behaviour is acceptable.

Ultimately, the question is whether or not the particular dismissal was within the range of reasonable responses, and inconsistency will only be one factor in assessment of reasonableness.

Nicholas Jew, partner, DLA Piper

Practical guidance from XpertHR on disciplinary sanctions

  • How to decide on an appropriate disciplinary penalty XpertHR outlines the considerations to be taken into account when deciding on an appropriate disciplinary penalty.
  • The boundaries of the band of reasonable responses In deciding whether or not a dismissal was fair, the tribunal must apply the “band of reasonable responses” test and consider if dismissal was an option open to a reasonable employer. While the band is wide, there are limits to when dismissal will be a reasonable response, as a recent Court of Appeal decision highlights. Consultant editor Darren Newman discusses.
  • Reinstatement of one employee rendered another’s dismissal unfair Where two employees are dismissed fairly for the same misconduct, can the reinstatement of one render the other’s dismissal unfair? This was the key issue in the employment tribunal decision, Mohammad v DHL Services Ltd ET/1100752/10.

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