If an employee has two years’ service, then when considering a dismissal relating to conduct, an employer needs to act reasonably in the investigation, the process, the conclusions and the sanction imposed.  One of the things that an employer also needs to consider is consistency of treatment.  Inconsistency in punishments for misconduct may give rise to a finding of unfair dismissal. This really relates to where employees misbehave in much the same way.  In these circumstances employees should have punishments vetted out to them in much the same way.

In the recent EAT case of MBNA Limited v Mr Jones, a deliberate punch in the face at a work event was not sufficiently similar to threats made by text thereafter, so the difference in treatment did not make the dismissal unfair.

What were the facts?

MBNA Limited was holding an event at a racecourse to celebrate its 20th anniversary.  Staff were told that it was a work event and the normal standards of behaviour and conduct would apply.  Mr Jones, the Claimant attended along with another employee, Mr B, and Mr B’s sister.  Early during the event Mr B kneed the Claimant in the back of his leg and the Claimant licked Mr B’s face.  Later in the evening, the Claimant had his arms around Mr B’s sister and Mr B came over and kneed the Claimant in his leg again.  The Claimant punched Mr B in the face.  As the Claimant left the celebration, he and others went to a club.  Mr B waited outside the club and texted the Claimant seven times in a threatening manner stating that he would “rip his f***ing head off”.   There was no further incident between the Claimant and Mr B and Mr B never carried out his threats.

MBNA held a disciplinary investigation and brought charges against both the Claimant and Mr B.  The Claimant was dismissed for gross misconduct and Mr B was given a final warning.

The Claimant argued that there was inconsistency between the dismissal of him and the final written warning given out to Mr B.  

So what was the decision?

The original employment tribunal found the dismissal unfair on the basis of inconsistent treatment.

The EAT found that the conduct of the Claimant and Mr B was not the same.  The Claimant punched Mr B in the face during a corporate event in respect of which he had been expressly told that MBNA’s disciplinary procedure would apply.  Mr B texted threats to the Claimant which he did not carry out following the corporate event.  His conduct was later that evening.  Sending text messages threatening violence was plainly reprehensible but he did not in fact carry out his threat in the work place or anywhere.

Way Forward

If you are considering different sanctions in similar circumstances, it would be wise to take legal advice to see whether this might make any dismissal unfair. Having said that, it will be rare for the facts to be sufficiently similar to warrant consistent treatment.