The case

In this case, the EAT considered whether a dismissal was unfair where two employees were found guilty of gross misconduct for the same incident, but only one was dismissed.

Facts

Mr Jones and Mr Battersby were both employed by MBNA Limited. They both attended a work event at Chester Racecourse, during which Mr Jones licked Mr Battersby's face, and Mr Battersby kneed Mr Jones in the back of his leg (apparently, this was all "fun"). Later on, Mr Jones had his arms around Mr Battersby's sister, and Mr Battersby kneed Mr Jones in the leg again. Mr Jones punched Mr Battersby in the face. Mr Jones left the event and went to a club. Mr Battersby waited outside and sent Mr Jones seven texts threatening him with physical violence, though he did not carry out these threats.

After an investigation and disciplinary hearings, Mr Jones was dismissed. MBNA accepted that Mr Battersby kneed him, but said that this was not done with any force or aggression. It was not "substantive provocation", to be the basis for Mr Jones punching him. Mr Battersby, on the other hand, was given a final written warning for sending text messages of an "extremely violent" nature but he was not dismissed on the basis that MBNA found that the messages were made as an immediate response to Mr Jones punching him, and MBNA did not believe he meant to follow up on the threats.

Mr Jones claimed that he had been unfairly dismissed. The Employment Tribunal found that the dismissal was unfair because there had been an unreasonable disparity between the treatment of the two men. MBNA appealed this decision.

The EAT disagreed with the Employment Tribunal. It clarified that the relevant question is whether the employer has acted reasonably towards the employee who has been dismissed, regardless of what sanction has been applied to another employee.

What this means for employers

There are occasions where treating employees who have been involved in the same incident, differently will create an unfair dismissal risk. These are:

  • The very rare occasions where the circumstances are truly parallel.
  • A difference in treatment between employees which may lead to questions as to whether the employer's given reason for dismissal was the genuine reason.
  • If employers have treated similar types of misconduct more leniently in the past, employees may be able to argue successfully that they had been led to believe that such conduct would not lead to dismissal.

As always, employers should make sure they can demonstrate that they have carefully considered and taken into account all the circumstances of such incidents, in respect of each employee, before making the decision to dismiss. If they are treating two employees differently, they should be able to articulate and provide clear evidence of why they have done so.

MBNA Limited v Jones UKEAT/0120/15, 1 September 2015