The employer held a work event at a racecourse, specifically telling staff beforehand that normal workplace conduct and disciplinary rules would apply. Unfortunately, after incidents which onlookers later described as banter, the claimant punched a colleague in the face. After they had both left the event, the colleague waited outside a club where the claimant had gone and sent him a series of texts threatening him with serious violence. The threats were not carried out.
After an investigation, both employees had disciplinary hearings conducted by the same person. The claimant was dismissed for gross misconduct; he had risked reputational damage to his employer. For the colleague, also guilty of gross misconduct, the penalty was a final written warning. A tribunal found that the claimant had been unfairly dismissed, given the disparity in treatment between the two employees.
The EAT allowed the employer's appeal. The tribunal should have focused on the treatment of the claimant – was it reasonable to dismiss him? The fact that the employer may have been unduly lenient to another employee, or had taken into account provocation in his case, was not relevant. The actions of the two were different – the claimant had punched someone; the colleague had not. Nor was the employer required to "apply a defence of provocation" to the claimant as the tribunal had suggested; this was just an issue for mitigation, to be considered by the employer with other factors.
If there had been two exactly similar cases and the employer had decided to dismiss in only one, this might have supported an argument that it was not reasonable to dismiss, but it would be unusual for the facts to be completely on all fours.