Dismissal Not Unfair As Result Of Inconsistent Treatment


3 mins

Posted on 13 Nov 2015

The EAT overturned an employment tribunal’s decision that an employee dismissed for gross misconduct had been unfairly dismissed because another employee, who was also guilty of misconduct, was treated more leniently.

Speedread

The EAT overturned an employment tribunal’s decision that an employee dismissed for gross misconduct had been unfairly dismissed because another employee, who was also guilty of misconduct, was treated more leniently. The circumstances of the two employees were not truly parallel. It will be rare for the facts to be sufficiently similar to justify a finding that a dismissal is unfair due to inconsistent treatment.

Facts

In MBNA Ltd v Jones, MBNA held an event at Chester Racecourse to celebrate its 20th anniversary. It told staff that as it was a work event normal conduct rules would apply. There were a number of incidents at the party between Mr Jones and a colleague, Mr Battersby, culminating in Mr Jones punching Mr Battersby in the face.

After Mr Jones left the event he and others went to a club. Mr Battersby waited outside and sent Mr Jones seven texts threatening physical violence. However, he never carried out the threats.

MBNA brought disciplinary charges against both employees and Mr Horsefield conducted both disciplinary hearings. He decided to dismiss Mr Jones for gross misconduct. He did not accept his explanation that he had been provoked. He also took account of the fact that his misconduct occurred inside a venue that was clearly branded as an MBNA event and could therefore have impacted on MBNA’s reputation.

Mr Horsefield decided to issue Mr Battersby with a final written warning. The text messages he sent were of an extremely violent nature and were wholly inappropriate. However, they were made in response to Mr Jones hitting him and he did not believe that Mr Battersby intended to follow through on those threats.

Mr Jones claimed unfair dismissal and the employment tribunal ruled his dismissal was unfair as there was an unreasonable inconsistency in the employer’s treatment of Mr Jones and Mr Battersby.

MBNA appealed. 

Decision

 The EAT overruled the tribunal’s decision.

Where an employee seeks to argue that their dismissal was unfair because another employer was treated more leniently, the cases of the two employees must be truly parallel. It will be rare for the facts to be sufficiently similar to justify this. Had the employment tribunal considered whether the cases of Mr Jones and Mr Battersby were truly parallel, it would have been bound to make the finding that they were not. Mr Jones punched Mr Battersby during an event where he had been told that normal disciplinary rules applied. By contrast, Mr Battersby’s conduct took place after the event and although the texts threatening violence were plainly reprehensible, he did not carry them out in the workplace or elsewhere.

The tribunal had been wrong to consider whether MBNA was unreasonably lenient in Mr Battersby’s case. It should have focussed on the treatment of Mr Jones. As the tribunal had decided that Mr Jones’s dismissal would have been fair if the employer had also dismissed Mr Battersby, the EAT substituted a finding that the dismissal was fair.

Implications

Employers should always seek to act consistently when disciplining employees. However, an employee is only likely to succeed in arguing that their dismissal is unfair due to inconsistent treatment if the circumstances of their case are truly parallel with that of another employee treated more leniently. Factors such as the nature of the misconduct, provocation, the employees’ respective length of service and previous disciplinary records may all be relevant when considering whether cases are truly parallel.

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