The EAT has overturned a decision of the Tribunal in MBNA Limited -v- Jones 2015, clarifying the approach that Tribunals should take when dealing with allegations of disparate treatment. In this case, two employees received different disciplinary sanctions following a punch-up at a work event.

The Claimant, Mr Jones, attended an event held by his employer. Another employee, Mr Battersby, and his sister, were present. After consuming alcohol, Mr Jones placed his arm around Mr Battersby’s sister; Mr Battersby kneed Mr Jones, and Mr Jones responded by punching Mr Battersby in the face. After leaving the event, Mr Battersby waited outside a club for Mr Jones and sent seven text messages threatening him with physical violence, before going home. Mr Jones was dismissed for gross misconduct and Mr Battersby was given a final written warning. The Tribunal held that Mr Jones’ dismissal was unfair, because of the disparity in the sanction.

The EAT allowed the appeal. It said that the Tribunal had wrongly focussed on whether the employer had been unduly lenient on Mr Battersby, when it should have been considering the key question of whether the dismissal of Mr Jones had been a reasonable response. Furthermore, disparate treatment is only relevant in truly parallel circumstances arising from the same incident, and even then different sanctions do not automatically render a decision unreasonable. The Tribunal had erred in failing to ask whether the circumstances were truly parallel, and the EAT concluded that they were not. Physical violence during a work event (in respect of which employees had been expressly told that the employer’s disciplinary rules would apply), and threats of violence outside of work, were not sufficiently similar.