When determining the outcome of any disciplinary matter, HR professionals will often consider what level of disciplinary sanction has been applied in other similar situations within their organisation in the past. Employment tribunals may also consider the consistency of disciplinary sanction when determining whether a claimant has been unfairly dismissed. However, when making such comparisons you must be careful to ensure that you are making appropriate comparisons, comparing ‘apples with apples’ as they say. In the recent case of MBNA Ltd v Jones the employment tribunal got it wrong by comparing apples with oranges.

The case involved an incident at a work social event between Mr Battersby and his colleague, Mr Jones. It was initially described as “fun/banter” with Mr Jones licking Mr Battersby’s face and Mr Battersby kneeing Mr Jones in the leg. This however prompted Mr Jones to punch Mr Battersby in the face. Mr Jones then left the event and, a while later, Mr Battersby sent him several abusive voice messages threatening physical violence.

The employer investigated the incident and dismissed Mr Jones for gross misconduct. Mr Battersby, on the other hand, was given a final written warning for his behaviour. The employer found that a lesser sanction was appropriate as he was provoked to send the threatening messages having been punched in the face. Mr Jones brought a claim for unfair dismissal and argued that the sanction imposed upon him should have been consistent with the treatment of Mr Battersby in view of the similarities between their offences.

The employment tribunal upheld Mr Jones’ claim and agreed that both employees had been provoked into committing acts of misconduct which the employer had not properly considered when reaching its decision for each employee. In other words, it found that the employer had not treated like with like.

The employer successfully appealed against the decision and, in reaching its conclusion, the Employment Appeal Tribunal (EAT) emphasised that the relevant test was whether the sanction imposed upon Mr Jones was within the band of reasonable responses. The EAT stated that “if it was reasonable for the employer to dismiss the employee… the mere fact that the employer was unduly lenient to another employee is neither here nor there”.

The EAT referred to the inherent improbability of “truly parallel” disciplinary cases where inconsistency of treatment would render a dismissal unfair. In this case, the EAT found that it was perverse not to draw a distinction between a deliberate punch in the face and a threat of physical violence. It therefore held that the behaviour of Mr Jones and Mr Battersby was not sufficiently similar to bring consistency of treatment into the question of reasonableness.

The issue of inconsistent treatment is often raised by employees when appealing against their dismissal or other disciplinary sanction. Thanks to Mr Jones and Mr Battersby, employers can be reassured that it will be unusual for an employee to be able to establish that their ‘offence’ was entirely comparable with that of a colleague and therefore, provided it is within the ‘band of reasonable responses’ an employer’s decision to dismiss is likely to be supported by the tribunals.