In the recent case of MBNA Limited v Jones, the Employment Appeal Tribunal has provided a useful reminder of the principles to be applied when an employee alleges, as part of a claim for unfair dismissal, that he has been treated inconsistently in comparison to the way in which other employees have been treated.
The Claimant, Mr Jones, and his colleague, Mr Battersby, both attended an MBNA staff party in November 2013. Prior to the event it was made clear to staff that the party was a work event and that normal standards of behaviour and conduct would apply. During the course of the evening a number of incidents occurred between Mr Jones and Mr Battersby, which culminated in Mr Jones punching Mr Battersby in the face. Mr Battersby later sent a number of very threatening text messages to Mr Jones, although the threats were never carried out.
MBNA investigated the incidents and decided to dismiss Mr Jones, but Mr Battersby was given a final written warning. MBNA based this decision on its finding that Mr Battersby had been provoked into sending the text messages to Mr Jones. It also took account of the fact that Mr Battersby’s threats were not carried out.
Mr Jones brought an unfair dismissal claim in the Employment Tribunal (“ET”).
The ET found Mr Jones’ dismissal to be unfair on the basis that he had been treated inconsistently with Mr Battersby. It considered that the circumstances of the two cases were not that dissimilar and that MBNA had therefore acted unreasonably in dismissing Mr Jones, but not Mr Battersby.
However, the ET made a finding that both Mr Jones and Mr Battersby had committed ‘proven and unarguable’ acts of gross misconduct and, therefore, had they both been dismissed, both dismissals would have been fair.
Whether or not a dismissal is fair is to be assessed with reference to section 98 of the Employment Rights Act 1996. Employers first of all need to establish that the dismissal is for a potentially fair reason and then show that, having regard to that reason and in the circumstances, they acted reasonably in dismissing the employee. In determining this question the ET will look at whether the decision to dismiss fell with ‘the band of reasonable responses’ open to the employer.
The leading case on disparity of treatment is the Employment Appeal Tribunal (“EAT”) case of Hadjioannou v Coral Casinos Ltd, which is discussed below.
The EAT said that the ET had not given sufficient regard to the tests in section 98 or to the guidance set out in the Hadjioannou case. Hadjioannou says that a decision to dismiss the claimant where another employee committed similar (but not the same) misconduct but was not dismissed will only make the dismissal unfair in two cases. These are:
- where there is evidence that, by not dismissing employees in the past, the employer has led its workforce to believe that certain categories of conduct will be overlooked or at least will not be dealt with by dismissal; or
- where the decisions made in other cases support an inference that the stated reason for dismissal is not the real reason for dismissal.
In addition, where the circumstances of the two employees are ‘truly parallel’ this may support an argument that it was not reasonable for the employer to dismiss one of the employees if the employer did not also dismiss the other employee.
The EAT reaffirmed that the key question was whether the employer had reached reasonable conclusions and applied a reasonable sanction in the individual claimant’s case. In this case the EAT distinguished ‘between a deliberate punch in the face at what was designated to be a workplace” and “a threat afterwards’ and it found that Mr Battersby’s case was not ‘truly parallel’ to that of Mr Jones. Accordingly, MBNA’s treatment of Mr Battersby was irrelevant.
In addition, given the ET’s clear finding that Mr Jones had committed gross misconduct, the EAT overturned the ET’s ruling and found that Mr Jones’ dismissal was fair.
Finally, the EAT confirmed that provocation cannot be a defence to charges of gross misconduct but can only be considered in mitigation.