A common mantra in HR management is that consideration should always be given to the level of sanction imposed on other employees in similar circumstances. Fear of falling down on consistency can lead to a cautious approach, particularly where an employee or their trade union representative has dug up other incidents where lesser sanctions has been awarded.
The EAT decision in the case of MBNA Ltd v Jones, concerned an employee who was dismissed for punching a colleague at work event at Chester Racecourse in circumstances where his colleague was given a final written warning for sending threatening texts to him after the work event had finished.
It offers a very helpful reminder to employers of the key principles to be applied when dealing with allegations of differential treatment.
Mr Jones attended an event at Chester Racecourse to celebrate MBNA’s 20th anniversary. All staff in attendance were told it was a work event and that made aware that normal procedures with regard to conduct would apply. Mr Jones and his colleague, Mr Battersby were both drinking during the event and engaged in conduct which onlookers described as ‘fun/banter’ but which culminated in Mr Jones punching Mr Battersby in the face. Later that day after the work event had ended, Mr Battersby texted Mr Jones several times, threatening serious violence. However, there was no further incident between them.
MBNA found that there had been no significant provocation before Mr Jones punched Mr Battersby and that the incident risked reputational damage to the company. MBNA concluded that Mr Jones should be dismissed for gross misconduct. Mr Battersby, on the other hand, was given a final written warning. The disciplinary officer concluded that Mr Battersby had no intention of following through with the threats and that they were sent as an immediate response to being hit by Mr Jones. Whilst the text messages were of an extremely violent nature and this amounted to gross misconduct, MBNA concluded that the appropriate penalty was a final written warning.
Mr Jones claimed unfair dismissal and the tribunal upheld his claim. It held there was an unreasonable inconsistency in treatment in that both offences were found to amount to gross misconduct and that the ‘defence of provocation’ was applied differently to Mr Battersby.
Following an appeal by MBNA, the EAT applied previous case law (Hadjioannou v Coral Casinos Ltd ) and confirmed that the tribunal must focus on the treatment of the employee bringing the claim and whether the dismissal of that employee was within the band of reasonable responses.
The mere fact that an employer has been unreasonably lenient to another employee is neither here nor there. In a case where the circumstances are truly indistinguishable, different treatment is likely to render a dismissal unfair, but that was not the case here and it will be rare for the facts to be sufficiently similar.
The EAT held it would have been perverse to treat a deliberate punch in the face at a work event as sufficiently similar to threats made by text thereafter and it substituted a finding of a fair dismissal for the tribunal’s decision.
There are many different factors which can point towards material differences in similar disciplinary cases. These include the evidence relating to the misconduct incident itself, the employee’s response during internal proceedings, together with other mitigating factors such as length of service, personal circumstances and previous record.
Whilst this case is an important reminder that different treatment will rarely, in itself, render a dismissal unfair, our view is that businesses should nonetheless to endeavour to provide full reasons for any decision to dismiss in communicating the disciplinary outcome. This will help to demonstrate the reasons behind the employee’s treatment and that it is reasonable.
In addition, be mindful that where similar conduct has previously been treated less seriously, employees may argue that they had been led to believe that certain types of misconduct would be condoned and will not lead to dismissal.
Ensure that all employees are fully aware of what type of conduct is and is not acceptable in the workplace and reinforce this message on a regular basis through training and reissue of policies and procedures.
If you have any further questions in relation to dismissals or more general employment law issues please do not hesitate to contact Jo Tindall.