How relevant is consistency to a finding of unfair dismissal?

Mr Jones and Mr Battersby were both employed by MBNA Ltd (MBNA). They attended a works event at Chester Racecourse along with Mr Battersby’s sister. Staff were specifically told that this was a work event and normal standards of behaviour and conduct would apply.

During the event the two employees were involved in an “incident” where Mr Battersby kneed the back of Mr Jones’ leg and Mr Jones licked Mr Battersby’s face. Yes – bizarre, we agree.  During the investigation that followed, other employees who observed the “incident” considered this to be nothing more than a bit of fun and banter.

Later on however, a further altercation occurred when Mr Jones was seen by Mr Battersby with his arm around Mr Battersby’s sister. Mr Battersby again kneed Mr Jones in the leg whereupon Mr Jones retaliated by punching Mr Battersby in the face. 

Once the event at the racecourse had finished, Mr Jones went on to a club with colleagues. Mr Battersby followed Mr Jones, waiting outside for him and sending him a number of text messages threatening physical violence. However, Mr Battersby never got to make good on his threats.

MBNA decided that the incident between Mr Jones and Mr Battersby at the racecourse required investigation under its disciplinary policy. Disciplinary charges were brought against both individuals. Mr Jones argued he had been provoked by Mr Battersby and that he lashed out in self-defense. MBNA were particularly concerned that Mr Jones’ conduct had the potential to seriously impair its reputation.

Having considered Mr Jones’ defence of provocation, MBNA decided Mr Jones was to be dismissed on the grounds of gross misconduct.  Mr Battersby was only issued a final written warning. Mr Jones appealed his dismissal but the dismissal was upheld. Mr Jones brought an unfair dismissal claim. 

The ET decided that Mr Jones had been unfairly dismissed because of the inconsistency of treatment between the two employees. However, on appeal the EAT overturned this finding of unfair dismissal on the grounds that a deliberate punch at a work event and threats that were never carried out following the work event were sufficiently different to warrant different sanctions. 

In its decision, the EAT re-iterated the two stage approach an employer must take into account when considering whether a dismissal is fair:

1)      Has the employer demonstrated that it has a fair reason for dismissal? 

2)      Did the employer act reasonably in treating that reason as sufficient for dismissal? 

Whilst employers should consider the consistency of sanctions imposed on employees in similar circumstances, those circumstances must be “truly parallel”. In this case, circumstances were not truly parallel and vitally the Claimant had been told that this event was one where MBNA’s disciplinary rules would apply.

What does this mean for you or your business?

It is still important for employers to act consistently when dealing with disciplinary matters but this case is a useful illustration of how two cases will rarely be exactly the same.  However, in cases where the circumstances are different, it may well be reasonable to impose different sanctions on different employees. 

Employers should focus on the fairness of each individual's dismissal and only consider associated dismissals if the circumstances are ‘truly parallel’. 

Remember, in order for a misconduct dismissal to be fair an employer must demonstrate that:

1)      It had reasonable grounds to believe the employee was guilty of misconduct; and

2)      It believed it was reasonable to dismiss in all the circumstances.

Finally, don’t forget that the ACAS Code applies to dismissals for misconduct.  Before dismissing an employee for misconduct an employer should:

• Investigate the misconduct;
• Inform the employee of the allegations of misconduct in writing;
• Conduct a disciplinary hearing or meeting with the employee and allow the employee to be accompanies by a fellow employee or Trade Union Representative; 
• Inform the employee of the decision in writing; and
• Give the employee a right of appeal.

What do you need to be doing now?

Remind managers that where your business holds a work-related social event, employees must conduct themselves acceptably at such events. In addition, think about reminding employees of your company’s disciplinary policy at regular yearly or half yearly intervals.

These notes have been prepared for the purposes of articles only. They should not be regarded as a substitute for taking legal advice.