The EAT has revisited its guidance on disparity of treatment in disciplinary proceedings and when such disparity will affect the fairness of a dismissal. The case of MBNA Ltd v Jones UKEAT/0120/15 concerned two colleagues who were involved in an altercation at a work event. Mr Jones punched a colleague in the face; that colleague then sent threatening text messages to him. Mr Jones was dismissed, while his colleague was issued with a final written warning. Mr Jones argued that the leniency with which his colleague was treated made his dismissal unfair, however the EAT confirmed that the correct test remains whether it was reasonable for the employer to dismiss the particular employee in the circumstances. Inconsistency of treatment will only be relevant in limited circumstances, such as where two cases are “truly parallel”, which was not the case here.
The assessment of whether a dismissal is fair involves a two stage approach. First, the employer has to demonstrate that it had a fair reason for dismissal. Secondly, the employer must show that it acted reasonably in treating that reason as sufficient to dismiss the employee.
Misconduct is a potentially fair reason for dismissal. A dismissal for misconduct will only be fair where: (1) an employer genuinely believed the employee to be guilty of misconduct; (2) it had reasonable grounds for holding that belief; and (3) it had carried out as much investigation as was reasonable in the circumstances.
The employment tribunal will then ask whether the decision to dismiss the employee fell within the range of reasonable responses open to a reasonable employer.
Employers should consider the level of sanction imposed on other employees in similar circumstances and act consistently with those decisions, unless there are material differences in the circumstances or the offence. In terms of disparity of treatment however, guidance given by the EAT in Hadjioannou v Coral Casinos Ltd  IRLR 352 (Hadjioannou) confirmed that an employer’s previous decision not to dismiss an employee in the same circumstances will only render a dismissal unfair in two types of cases:
- Where the employer has previously treated similar cases less seriously, such that: a) employees have been led to believe that certain categories of conduct will be overlooked, or will not lead to dismissal; b) or it can be inferred that the purported reason for dismissal is not, in fact, the real reason.
- Where employees in “truly parallel circumstances” have been treated differently so as to support an argument that it was not reasonable to dismiss the employee and that a lesser sanction would have been appropriate in the circumstances.
Mr Jones was employed by MBNA Ltd (MBNA) as a collections officer at its Chester offices from 27 February 2006 until he was dismissed with effect from 19 December 2013.
On 8 November 2013, MBNA held an event at Chester Racecourse to celebrate its 20th anniversary. Staff were told that it was a work event and that normal standards of behaviour and conduct would apply. They were advised that any misbehaviour would be subject to MBNA’s normal procedures and guidelines. Mr Jones attended the anniversary celebration, as did his colleague Mr Battersby and Mr Battersby’s sister.
Although the event did not start until 7pm, Mr Jones and Mr Battersby began drinking much earlier; Mr Battersby at about midday and Mr Jones at about 5pm. Both employees knew each other and there was an incident early in the evening where Mr Battersby kneed Mr Jones in the back of the leg and Mr Jones licked Mr Battersby’s face. Staff who witnessed the incident considered it to be nothing more than “fun / banter”. Later in the evening however, Mr Battersby observed Mr Jones with his arms around Mr Battersby’s sister. Mr Battersby again kneed Mr Jones in the leg. Mr Jones proceeded to punch Mr Battersby in the face.
After leaving the celebration Mr Jones went on to a club with some colleagues. Mr Battersby knew he was there. He waited outside and sent a total of seven text messages to Mr Jones threatening physical violence. As it happened, there was no further incident between Mr Jones and Mr Battersby. The messages were not in fact received by Mr Jones until the following day and Mr Battersby did not carry out his threats.
Unsurprisingly, MBNA decided to deal with matters under its disciplinary procedure. The events of the celebration evening were investigated and disciplinary charges brought against Mr Jones and Mr Battersby. Mr Jones was charged with punching Mr Battersby and conduct that had the potential to seriously impair MBNA’s reputation. Mr Jones argued that he had been provoked by Mr Battersby kneeing him in the leg and that he had lashed out in self-defence.
Following a disciplinary hearing, the hearing manager concluded that there was no substantive provocation for Mr Jones’ actions and he was dismissed on grounds of gross misconduct. Mr Battersby was issued with a final written warning. While the hearing manager considered that Mr Battersby’s text messages also amounted to gross misconduct, he concluded that they were after the event and Mr Battersby had been provoked.
Following an unsuccessful appeal, Mr Jones brought a claim of unfair dismissal.
Employment tribunal decision
At the employment tribunal (ET) hearing, Mr Jones argued that there had been inconsistency of treatment between him and Mr Battersby. MBNA argued that their circumstances were not truly like for like and that it was not permissible to find Mr Jones’ dismissal unfair because of Mr Battersby’s treatment.
The ET expressly found that it was reasonable for MBNA to conclude that Mr Jones was not provoked “beyond reasonable measure”, that the conduct was gross misconduct and that (subject to what followed) it was reasonable to dismiss him in the circumstances.
However, the ET ultimately held that the decision to dismiss Mr Jones was unreasonable and that the defence of provocation had been applied differently to Mr Jones and Mr Battersby. This particular disparity was also held to be unreasonable. The ET judge concluded that “the respective decision to dismiss [Mr Jones] and give Mr Battersby a final written warning was as a result of the different provocation test applied to both, and this amounted to an unreasonable disparity of treatment between the two of them during the respective disciplinary hearings. This rendered [Mr Jones’] dismissal unfair.”
MBNA appealed to the EAT arguing that the conduct of Mr Jones and Mr Battersby was not the same. Mr Jones punched Mr Battersby in the face during a work event. After the event, Mr Battersby texted threats to Mr Jones that he did not actually carry out.
The EAT confirmed that when considering arguments of disparity of treatment between employees, the key question for the ET is whether the employer reached reasonable conclusions and imposed a reasonable sanction in the case that is being considered by the ET. If it was reasonable for the employer to dismiss the employee, the mere fact that the employer was unduly lenient to another employee is irrelevant.
The EAT confirmed that there may be cases where disparity of treatment has to be considered, but an ET must tread carefully and have regard to the guidance given in Hadjioannou. Disparity of treatment may be relevant where decisions made in “truly parallel circumstances” support an argument that it was not reasonable to impose a penalty of dismissal and that some lesser penalty would have been appropriate. However there will only be a limited number of cases where the circumstances can be said to be “truly parallel” such that disparity of treatment will result in an unfair dismissal.
The EAT considered that this had not been properly addressed by the ET. Had it been addressed, the judge would have been bound to conclude that the circumstances of Mr Jones and Mr Battersby were not the same. Mr Jones punched Mr Battersby during a work event; an event at which he was clearly told MBNA’s disciplinary rules would apply. Mr Battersby did not; while his conduct was plainly reprehensible, he did not carry out his threat in the workplace or anywhere else.
The question for the judge was not whether MBNA was unreasonably lenient in Mr Battersby’s case but whether it reached reasonable conclusions and applied a reasonable sanction in Mr Jones’ case. The ET had expressly found this to be the case. It followed that the ET's decision could not stand and the EAT substituted a finding that the dismissal was fair.
The EAT’s decision is a useful one for employers and reminds ETs of the key consideration in cases of this kind – whether the employer acted reasonably or unreasonably in dismissing the employee for misconduct.
Even though the two disciplinary sanctions in this case arose from the same incident, the circumstances could not be said to be “truly parallel”. While it is still critical for employers to act consistently when considering disciplinary matters, the case does provide a useful reminder that two cases will rarely be exactly the same and it may well be reasonable to impose different sanctions in different (but similar) cases.
The EAT also confirmed that while provocation may be a mitigating factor to be taken into account by an employer, it does not follow that provocation provides a “defence” to any kind of misconduct. Provided that an employer has considered any mitigating factors (including any provocation) it may well be reasonable to dismiss an employee in any event.