The Employment Appeal Tribunal (EAT) has held that when considering issues of disparity of treatment be- tween employees, the relevant question is whether the employer has acted reasonably towards the employee who has been dismissed, regardless of what sanction has been applied to any other employee.


Mr Jones and Mr Battersby, who were both employed by MBNA Ltd, attended a work event at a racecourse. At one stage of the evening, Mr Jones put his arm around Mr Battersby’s sister which led Mr Battersby to knee him in the leg. Mr Jones retaliated by punching Mr Battersby in the face. Mr Jones then left and went to a club. Mr Battersby waited outside and sent Mr Jones seven texts threatening him with physical violence but he did not carry out his threats.

Both employees were found guilty of gross misconduct but whereas Mr Jones was dismissed for punching his colleague, Mr Battersby received a final written warning for sending text messages of a violent nature. He was not dismissed because his texts were an immediate re- sponse to Mr Jones punching him, i.e. he had been pro- voked. The company found that Mr Battersby kneeing Mr Jones in the leg had not been done with any force or aggression.

Mr Jones brought an unfair dismissal claim. The Tri- bunal upheld his claim on the basis that both men had been provoked but only one had been dismissed and this disparity made the decision to dismiss unreasona- ble. The company appealed to the EAT.

What does this mean?

The EAT held that the Tribunal had wrongly focussed on Mr Battersby’s treatment rather than focussing on whether the company had reached a reasonable deci- sion in relation to Mr Jones.

The EAT held that disparity of treatment will occasion- ally be relevant to the issue of reasonableness, but the circumstances of the employees being compared need to be ‘truly parallel’. In this case, the employees were not in truly parallel circumstances and therefore the de- cision to dismiss Mr Jones for physical violence could not be held to be unreasonable.

The EAT also confirmed that, although provocation is not a ‘defence’, it is a mitigating factor to be considered by an employer.

What should employers do?

Employers should look at all the circumstances of a disciplinary matter very carefully, particularly when con- sidering if employees are in parallel circumstances and should therefore be treated the same. However, em- ployers also need to consider any mitigating factors be- fore making the decision to dismiss and make sure they are acting within the range of reasonable responses.

Case reference: MBNA Limited v Jones