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Disciplinary Actions - Consistency of Treatment

The Employment Appeal Tribunal (EAT) recently confirmed in the case of MBNA Limited -v- Jones that inconsistency of treatment will not necessarily render a dismissal unfair. 

In this case, two employees were required to attend a corporate social event, ahead of which they were both advised that normal standards of behaviour and conduct in the workplace would be expected.  The two employees began drinking before the social event and some tomfoolery ensued at the social event which culminated in one of the employees, Mr Jones, punching the other, Mr Battersby, in the face.  It was also established that after the social event, Mr Battersby sent a number of physically threatening text messages to Mr Jones but the threats were not carried out.  Disciplinary action was taken against both employees, at the end of which Mr Jones was dismissed and Mr Battersby was given a final written warning. 

Mr Jones lodged a claim of unfair dismissal against the employer and was successful at the Employment Tribunal.  The Employment Judge ruled that the dismissal was unfair due to the inconsistency of treatment between the two employees.  However, the employer appealed against the judgment and the EAT reversed the Employment Tribunal’s decision.  The EAT concluded that the test of reasonableness set out in Section 98(4) of the Employment Rights Act had not been correctly applied by the Employment Judge.  The test of reasonableness requires the Employment Tribunal to take account of the range of reasonable responses open to an employer in the particular circumstances.  Furthermore, the test set out in Hadjioannou -v- Coral Casinos Limited had not been adequately considered which would have required the Employment Judge to take account of the individual circumstances of both cases to order to establish whether the two examples were in fact parallel or not.  Had the circumstances been more similar, Hadjioannou would have had the effect of rendering the dismissal unfair due to the inconsistent treatment between the two employees. In this case however, the Employment Judge had failed to draw any distinction between a punch in the face in a “workplace” and a threat issued afterward which had not been acted upon.  

This is a helpful reminder for employers where misconduct proceedings contain a number of employees but with varying degrees of participation.  The decision maker in the disciplinary proceedings will be required to consider each individual’s circumstances separately before reaching an appropriate disciplinary outcome for each employee which may vary depending on the individual employee’s degree of participation. 

For more information please contact Martin Sinclair or Nicola Gray or call 01224 632464.

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