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25th November 2015

Would an inconsistency in treatment make a dismissal unfair?

All employers will eventually find it necessary, at some stage, to take action against employees under their disciplinary procedures in respect of allegations of an employee’s misconduct or gross misconduct. Employers in the care sector are no exception, especially given the nature of the work they are involved with.

A recent case at the Employment Appeal Tribunal (EAT) has considered the situation where two employees are accused of similar misconduct in respect of their behaviour, but they are given different sanctions, such as, where one employee is dismissed, and the other is not.

MBNA Limited v Jones

In the case of MBNA Limited v Jones, the EAT was required to decide whether such an inconsistency in treatment was enough to make Mr Jones’ dismissal unfair.

The two employees of MBNA Limited had attended a corporate social event. They had previously been warned that normal standards of behaviour and conduct would be expected. However, they both began to drink, and they fell out. Mr Jones punched a colleague, Mr Battersby, in the face. In turn, after the event, Mr Battersby texted Mr Jones on a number of occasions threatening to rip Mr Jones’ head off, amongst other things. Mr Battersby never carried out his threats.

MBNA carried out an investigation in accordance with its disciplinary procedure against both employees. Following a thorough investigation, the outcome was that Mr Jones was dismissed for his behaviour, but Mr Battersby was given a final written warning.

Unfair Dismissal?

At the employment tribunal, Mr Jones was successful in arguing that his dismissal was unfair because of the inconsistency in treatment between himself and Mr Battersby. However, on appeal, the EAT overturned this decision.

It was held that the Judge at the employment tribunal had not applied the correct test under the Employment Rights Act 1996, which required recognition that there may be a range of reasonable ways in which an employer could react to the circumstances which give rise to a dismissal. He had also failed to apply the test in the previous case of Hadjioannou v Coral Casinos Limited; namely, he had failed to consider whether there was a decision that had been made in truly parallel circumstances that made it unreasonable for the employer to dismiss the employee.

In the case of Mr Jones, the Judge at the employment tribunal had not drawn an express distinction between a punch in the face at what was considered to be an extension of the workplace, and a later threat that was never carried out. If he had done so, he would have been forced to conclude that the two sets of circumstances were not the same.

Disciplinary Sanctions

It is important for employers to recognise that, when determining whether a disciplinary sanction is reasonable, it will be necessary to consider the specific allegations against an employee. If two employees are disciplined for their conduct in the same circumstances, then the sanction given to each employee would be expected to be the same.

If the circumstances are not truly the same, as was the case with Mr Jones and Mr Battersby, employers will be able to justify giving different sanctions to each employee, provided that this is reasonable given the evidence available.

Anthony Fox, Employment Partner, Napthens LLP – QCS Expert Employment Law Contributor

Topics: Human Resources

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