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4: Appeal Tribunal rejects finding of unfair dismissal due to inconsistent treatment of employees

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4: Appeal Tribunal rejects finding of unfair dismissal due to inconsistent treatment of employees
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Where employees are treated differently in very similar circumstances arising from the same incident, this may lead to a finding of unfair dismissal.  In MBNA Limited v Jones, the Appeal Tribunal considered whether an employee was unfairly dismissed for gross misconduct when another employee who was also guilty of gross misconduct in connection with the same incident was only given a final warning.

MBNA held an event at Chester Racecourse.  Staff were reminded that it was a work function and that the company’s normal standards of behaviour applied.  Amongst the employees who attended were Mr Jones and Mr Battersby.  During the event, various unsavoury incidents took place (including Mr Battersby kneeing Mr Jones in the back of his leg, and Mr Jones licking Mr Battersby’s face) which culminated in Mr Jones punching Mr Battersby in the face. Mr Battersby sent several texts to Mr Jones threatening serious violence in retaliation, although he did not carry out these threats and there were no further altercations between them.

Following an investigation and disciplinary hearing, Mr Jones was dismissed for gross misconduct.  It was accepted that he had been provoked by Mr Battersby, but not sufficiently to warrant punching him.  The same manager gave Mr Battersby a final written warning for sending the text messages.  Mr Battersby was not dismissed because it was considered that the texts were an immediate response to Mr Jones punching him.

The employment judge held that Mr Jones’ dismissal was unfair because of the inconsistent treatment of the two employees.  He considered that it was unreasonable to find that Mr Battersby’s reaction was an immediate response to being punched when in fact he had sent the texts hours afterwards.  Applying the defence of provocation differently had led to an unfair disparity of treatment.  MBNA appealed the decision.

The Appeal Tribunal held that the employment judge had failed to apply the law on unfair dismissal correctly.  Disparity will only be relevant where employees in truly parallel circumstances arising from the same incident are treated differently. Here, there were key differences between Mr Jones’ and Mr Battersby’s conduct.  For example, Mr Jones punched Mr Battersby during an event in respect of which he was expressly told that MBNA’s disciplinary rules would apply.  Mr Battersby’s texts were sent outside the work context.  In addition, although Mr Battersby’s conduct was reprehensible, he did not in fact carry out his threats. The Appeal Tribunal also confirmed that the employment judge was wrong to treat provocation as a defence rather than a mitigating factor to be considered by the employer.

In essence, the employment judge had lost sight of the main question, which was whether MBNA acted reasonably in dismissing Mr Jones, regardless of what sanction was applied to Mr Battersby.  The appeal tribunal concluded that the finding of unfair dismissal could not stand and substituted a finding of fair dismissal.

It will be relatively rare for circumstances arising from the same incident to be sufficiently similar to result in a finding of unfair dismissal.  The employment judge in this case seems to have been distracted by the issue of disparity when in fact Mr Jones’ and Mr Battersby’s circumstances were not sufficiently parallel for Mr Jones’ dismissal to be unfair.  The overriding role of a tribunal is to assess the reasonableness of the employer’s treatment of an employee. This case is also a useful reminder that employers are not required to apply a test of provocation, although it may be a relevant mitigating factor.

7 December 2015

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