The claimant was dismissed for gross misconduct relating to ‘aggressive and threatening behaviour’. It was alleged that he had made comments about management and their children and that he ‘hoped they died’. Another comment threatened to find out where a manager lived. The claimant argued that there had been a disparity in treatment as other colleagues had made much worse comments than he had. He described the behaviour of other staff members, including a punching incident which did not even receive a verbal warning.

The appeal was allowed because the argument that managers were not treating all misbehaving employees equally was not sufficiently investigated at the tribunal. The EAT noted that consistency of treatment has two relevant aspects: sanctions