The Christmas 2015 celebrations may be in full swing, but some unlucky employers are still feeling the after effects of “the tribunal after the night before”. Last month, the papers reported the unhappy case of the London Zoo meerkat handler who got into a fight at the Christmas party with a colleague who worked with the monkeys over the affections of a llama keeper. There was contradictory evidence as to how the fracas began, but the zoo decided to dismiss one and give the other a final written warning and a ban from future work events. The employment tribunal held that the dismissed employee had been unfairly dismissed because, with no clear evidence of who started the fight, no reasonable employer would have placed the blame primarily on her, and therefore it could have legitimately dismissed them both, or given them both final written warnings. (However, despite her win she was awarded nothing, as the tribunal determined her contributory fault reduced her compensation by 100%.)
It might be tempting to read from this that, if and when you are faced with two employees who are guilty of the same offence, employers should treat them in the same way. Not necessarily so: as so often with employment law and HR issues, the reality is more nuanced. Another recently reported case concerning a work social event, this time from the EAT (and therefore binding on employment tribunals) provides a further example of a party to remember (if not for all the right reasons).
MBNA v Jones concerned an evening event held at Chester Racecourse by the bank MBNA to celebrate its 20th anniversary. Staff were told that normal work standards of behaviour and conduct would apply and any misconduct would be subject to MBNA’s usual procedures. Among the employees who attended were Mr Jones, Mr Battersby, and Mr Battersby’s sister.
Mr Jones and Mr Battersby had both begun drinking before arriving at the venue. It did not take long before “some form of incident” (in the words of the EAT) took place. First Mr Battersby kneed Mr Jones in the back of the leg, then Mr Jones licked Mr Battersby’s face. However, other colleagues regarded this as no more than “fun” and “banter”. Later on, Mr Jones put his arms around Mr Battersby’s sister; Mr Battersby kneed Mr Jones in the leg once again, and in reply Mr Jones punched Mr Battersby in the face.
This was not the end of the story. At the end of the party, Mr Jones and other colleagues went on to a club. Mr Battersby waited outside and sent Mr Jones seven threatening text messages, and warned Mr Jones that he knew where Mr Jones was staying, would follow him home, and “rip his ______ head off”. Fortunately for his peace of mind, Mr Jones did not receive the texts until the following morning and – even more fortunately – Mr Battersby actually did nothing of the kind.
In the cold light of day, MBNA took action against both employees, considering that their behaviour was completely unacceptable and had the potential to damage the bank’s reputation. After disciplinary hearings, Mr Jones was dismissed for gross misconduct, and Mr Battersby was given a final written warning since – concluded the chair of disciplinary hearing – although his texts were violent and utterly inappropriate, they were in immediate response to the punch and the chair did not believe there was any intention to act on them. At the later appeal, the chair said that, had it been up to him, he would have dismissed the pair of them, but felt unable to upgrade the decision to give Mr Battersby a final written warning, and upheld Mr Jones’ dismissal.
Mr Jones brought a tribunal claim which succeeded – much like that of the meerkat keeper – because of the inconsistent treatment of the pugilistic pair. The employment judge made clear that, had Mr Battersby also been dismissed, Mr Jones would have lost.
MBNA appealed, arguing that an otherwise fair dismissal should not be held unfair simply because some one else had been treated differently. The Employment Appeal Tribunal agreed and laid out some guidance for employers faced with the question of how to treat two or more individuals found to have committed similar disciplinary offences:
The key question for all unfair dismissal cases is “was it reasonable, in all the circumstances, for the employer to treat the reason it relied upon as sufficient for dismissal?”
This needs to be considered for each employee. Once it has been established that it is reasonable in the case of that particular individual, then “the mere fact that the employer was unduly lenient to another employee is neither here nor there” (said the EAT).
However, inequitable treatment can still be an issue of fairness in certain circumstances. For instance, if one employee is treated in a way which leads others to believe that a certain act will not lead to dismissal, but then does; or whether evidence of treatment in other cases suggests that the purported reason stated by the employer is not the real one; or finally, whether evidence of decisions in “truly parallel circumstances” may suggest it was unreasonable to dismiss.
Surely, then, these cases should fall into the last category? On the basis that it takes two to tango, should the two fighters be treated equally? Perhaps, or perhaps not. The EAT felt that small distinctions between two cases could easily be enough to tip the balance – whether that be inexperience, contrition or – as here – who threw the first punch, and who simply retaliated. There is no defence of provocation to assault in English law, but it may be considered as a matter of mitigation. The EAT did not agree with the employment judge that the circumstances of Mr Jones and Mr Battersby were the same. Since the case then fell outside the three categories identified, the fairness of Mr Jones’ dismissal was unaffected by Mr Battersby’s narrow escape.
The case is useful for employers considering whether two or more employees can or should be treated in the same way. All the circumstances must be reviewed very carefully before deciding whether or not the two cases are sufficiently similar”. Even small differences may be sufficient to justify different treatment, even when both employees have been found guilty of the same disciplinary offence.
And finally, the case provides an important reminder at this time of year: at Christmas parties, it’s best to avoid the punch.