Interesting for employers – Inconsistent disciplinary sanctions do not always make a dismissal unfair

The recent decision of the EAT in the case of MBNA Ltd v Jones UKEAT/0120/15 is relevant for employers who are disciplining two or more employees in respect of conduct arising from the same incident. In this case the EAT considered how employment tribunals should tackle the question of whether a dismissal has been fair where two employees involved in the same incident were guilty of gross misconduct.

The facts

Mr Jones (‘Mr J’) and Mr Battersby (‘Mr B’) were employed by MBNA Ltd and attended an event arranged by their employer to celebrate the organisation’s 20th anniversary. All staff had been told that the workplace standards of behaviour would apply at the event.

Mr J and Mr B had been drinking prior to the start of the event. Both were initially in good spirits but various incidents ensued escalating to Mr J punching Mr B in the face. Later in a nightclub, Mr B sent Mr J seven texts threatening serious violence.

MBNA Ltd subsequently invited both employees to disciplinary hearings. Mr J was dismissed for gross misconduct as a result of hitting Mr B at an organisation event. Mr B was also found guilty of gross misconduct for sending text messages of an “extremely violent” nature; however, he was not dismissed as MBNA found that they were sent as an immediate response to Mr J punching him. Instead, Mr B was given a final written warning.

Mr J claimed that he and Mr B had received inconsistent treatment and that his dismissal was unfair. The tribunal agreed.

MBNA appealed.

The decision

The EAT allowed the appeal and overturned the tribunal’s decision.

The EAT decided that the tribunal had not applied the statutory test in section 98(4) of the Employment Rights Act 1996 which recognises that there may be a range of reasonable ways in which an employer may react to the circumstances which give rise to the dismissal. The EAT said that the tribunal had also not considered whether there was a decision made in truly parallel circumstances which made it unreasonable for the employer to dismiss Mr J. Whilst these matters arose from the same incident, the tribunal had not distinguished between a deliberate punch in the face at a workplace and a threat afterwards that was never followed through. Had this been done it would have found that the circumstances leading to the disciplinary were not truly parallel.

The EAT held that if MBNA’s decision to dismiss Mr J was reasonable, the fact that MBNA may have been unduly lenient to Mr B by only giving him a final written warning was irrelevant and did not affect the fairness of Mr J’s dismissal.

What does this mean for employers?

This decision makes clear that employers have a degree of flexibility when dealing with misconduct allegations arising from the same scenario. They should, however, still try to ensure consistency in disciplinary decisions and make sure that like cases are dealt with by issuing the same sanction. If not, any differences in treatment should be clearly considered and explained.

For more information or for any employment law enquiries the employment team can be contacted at [email protected] or 020 7408 8888.