Disparity of treatment may not necessarily be unfair

Posted by Joanne Davies on

Did your Christmas party go with swing or with a swing and a punch? If you are now dealing with the consequences of an office party that didn't go to plan, you will be interested in the recent decision of the EAT in the case of MBNA Limited v Jones.

The issue in this case was whether it was fair to dismiss only one employee and to give the other employee a final written warning when both employees were involved in the same incident that constituted gross misconduct.

Background

Mr Jones and Mr Battersby both attended an event at Chester Racecourse to celebrate MBNA's 20th anniversary. Staff were notified that it was a work event and that the normal standards of behaviour and conduct would apply. 

Both men started drinking before the event began. At the event, there was an incident between them early on and then later, another incident when Mr Jones punched Mr Battersby in the face. After the event, Mr Battersby sent seven text messages to Mr Jones threatening him with physical violence such as threatening to rip his head off. Mr Jones did not receive the texts until the following day.

Both men were subject to disciplinary proceedings. Mr Jones admitted hitting Mr Battersby but classed his actions as self-defence. The disciplining officer however concluded that there was no substantive provocation for the behaviour and as the incident occurred at a clearly branded MBNA event, Mr Jones's act could have impacted on MBNA's reputation. Mr Jones was dismissed for gross misconduct. The same disciplining officer dealt with Mr Battersby. He concluded that the texts were of an "extremely violent nature and were wholly inappropriate" but were sent as an immediate response to being hit by Mr Jones. Further, there was no intention to follow through on those threats. Mr Battersby was given a final written warning.  

Mr Jones appealed against his dismissal but was unsuccessful. He then brought an unfair dismissal claim arguing inconsistent treatment.   

Employment Tribunal

The assessment of whether a dismissal is fair involves a two stage approach (section 98, Employment Rights Act 1996 (ERA 1996)).

First, the employer must show that the reason relied on for dismissing the employee falls within the five potentially fair reasons permitted, that is, conduct, capability, redundancy, illegality or some other substantial reason justifying dismissal. The second stage involves asking whether the reason relied upon is reasonable having regard to:

  • Whether in the circumstances (including the employer's size and administrative resources) the employer acted reasonably in relying on that reason as sufficient to dismiss the employee.
  • The equity and the substantial merits of the case.

In addition, one of the key principles of the ACAS Code of Practice on Disciplinary and Grievance procedures is that employers need to act consistently.

Mr Jones's claim was successful. The Employment Tribunal held that the defence of provocation was applied differently to the two men during the disciplinary proceedings which meant that there was a failure to treat both men to the same standards of investigation. This amounted to an unreasonable disparity of treatment between them and the difference in sanction was unreasonable.  

Employment Appeal Tribunal

The EAT allowed MBNA's appeal. The test for the Employment Tribunal is to ask whether the employer's differential treatment of the employees was so irrational that no reasonable employer could have taken that decision.

The key question was whether MBNA had acted reasonably towards Mr Jones and applied a reasonable sanction to his misconduct regardless of the sanction applied to Mr Battersby. It was important to carefully consider the circumstances to establish whether or not the circumstances of both employees were "truly parallel". A distinction was drawn between a deliberate punch in the face at what was designated to be a workplace and threats afterwards that were never carried out.

The EAT concluded that, the conduct of both men was not sufficiently similar and the disparate treatment did not make Mr Jones's dismissal unfair. The issue was not whether MBNA had been unduly lenient towards Mr Battersby but whether it reached reasonable conclusions and applied a reasonable sanction to Mr Jones.       

As for the argument of provocation, this was relevant to the issue of mitigation and was not a "defence" as such to misconduct.   

Comment

Employment Tribunals must not substitute their own view of what is reasonable for that of the employer. Rather, the test is whether the decision to dismiss the employee for that reason was within the range of decisions which a reasonable employer, acting reasonably, could reach.

In another recent decision, in the case Westlake v ZSL London Zoo, the Employment Tribunal heard how zookeeper Ms Westlake got into a fight with a colleague, Ms Sanders at the Christmas party over another zookeeper Mr Davies. He was Ms Sanders’ former boyfriend and by then was dating Ms Westlake. 

There were factual disputes as to how the incident escalated (for example, who struck the first blow).  Ms Sanders was hit in the face with a glass that Ms Westlake was holding and suffered a “short but deep gash” to her cheek.  London Zoo decided to dismiss Ms Westlake. Ms Sanders was given a final written warning and banned from future work at social events.  In upholding Ms Westlake’s claim for unfair dismissal, the Employment Tribunal concluded that, without clear evidence of who started the fight, no reasonable employer would have placed the blame primarily on her.  The Employment Tribunal held that the two women should have received the same disciplinary sanction.

Employers should act consistently when disciplining employees and it will not usually be reasonable to impose different sanctions in two similar cases. The circumstances will however need to be considered very carefully and in reality, it may be rare for the facts to be sufficiently similar. However, employers can make distinctions by taking into account, for example, aggravating factors, mitigating circumstances and differences in the employees' disciplinary records.

About the Author

Joanne is the head of the firm's Employment, Pensions and Immigration group.

Joanne Davies
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