And so off to Wrexham for the sort of day trip to the Employment Tribunal which every A-Level Law teacher just dreads. Just remember, boys and girls, don’t try this at home.
MBNA Limited held a 20th anniversary event at Chester Racecourse in November 2013. Staff were told that it was a work event and that they should behave appropriately. Among the revelling masses at the event were Mr Jones (the Claimant) and a Mr Battersby, both MBNA employees, and Mr Battersby’s sister. Perhaps misunderstanding the message behind the injunction to behave appropriately, both Battersby and the Claimant had started drinking some hours (in Battersby’s case, many hours) before the event kicked off, a phrase I use advisedly. Picking up from the Tribunal’s judgment: “there was some form of incident between them early during the event: Mr Battersby kneeing the Claimant in the back of his leg; the Claimant licking Mr Battersby’s face… later in the evening the Claimant had his arms around Mr Battersby’s sister. Mr Battersby came over. He kneed the Claimant in his leg again. The Claimant punched Mr Battersby in the face .… Mr Battersby waited outside. He texted the Claimant 7 times in all, threatening to “rip your f*****g b*****d head off”. Both are assets at any dinner party, clearly.
Disciplinary proceedings were started against both men. The disciplining manager considered that the Claimant had been guilty of actual violence while Battersby had merely threatened it, and that the threats had in any case been an immediate and so partially understandable response to the punch. The repeated kneeing of the Claimant and his then licking Mr Battersby’s face had been essentially conversational in nature, he found. Battersby was given a final written warning and the Claimant was sacked summarily. The MBNA appeal manager would have wished to dismiss both but was hamstrung by the decision already taken on Battersby, so contented himself with upholding the Claimant’s exit.
In Tribunal Mr Jones’ unfair dismissal claim succeeded, but only because of the discrepancy in treatment between Battersby and himself. The Judge in Wrexham made it clear that if Battersby had been dismissed also, the Claimant would have lost. MBNA appealed - could the otherwise clearly fair dismissal of the Claimant be found unfair just because someone else had been treated differently?
The Employment Appeal Tribunal considered the law in relation to consistent treatment - one of those things you know you should look out for in party-cases of this sort - and gave some useful guidance for employers:
(i) The main question in determining fairness is the statutory test in section 98(4) Employment Rights Act – was it reasonable in the circumstances for the employer to treat the reason it relied upon as sufficient basis for dismissing the employee? Almost everything else is just noise.
(ii) “If it is reasonable for the employer to dismiss the employee whose case the ET is considering, the mere fact that the employer was unduly lenient to another employee is neither here nor there”, said the EAT.
(iii) There are three sets of circumstances where inequitable treatment can raise a question mark over fairness: (a) where the treatment of one employee leads another to believe that a certain act or course of conduct will not lead to his dismissal but then it does; or (b) where evidence of treatment in other cases suggests that the purported reason stated by the employer is not the real one; or (c) as here, where evidence of decisions in “truly parallel circumstances” may support an argument that it was not reasonable to dismiss in the circumstances.
(iv) however, truly parallel means truly parallel, in that small distinctions can easily be relied on to tip the balance – an expression of contrition by one employee and not the other, for example, or relative inexperience or some element of provocation, as here. The EAT did not agree with the Employment Judge that the facts for Jones and Battersby had been so similar, essentially for the reasons used by the dismissing manager in the first place. Given that conclusion, none of the three circumstances in (iii) above were applicable, and hence the fairness of Jones’ dismissal could not be tainted by the different approach taken to Battersby.
(v) Findings of fact made by the employer (here, as to some degree of provocation, the faintly dubious “immediacy” of Battersby’s response, etc.) should not be re-opened by the Employment Tribunal – that would be an impermissible substitution of the Judge’s view for that of the employer and could not stand.
(vi) So if you want to treat employees differently in disciplinary terms, then for the most part you can safely do that. The more “truly parallel” their circumstances the greater the burden to evidence why, but that hurdle is perhaps lower now than had previously been thought.