Blog: Spot the difference – Festive frolics and consistency in misconduct dismissals

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Once upon a time in the North Pole, Santa Co. Ltd. held a Christmas party at the Reindeer Racecourse and Mrs Claus from the HR department very carefully sat down all the little elves and told them they had to be on their best behaviour. All the little elves, who had worked hard for the whole year, listened and nodded and at the party all the little elves were very good except for Big Ears and Little Ears who started drinking at lunchtime. When they got to the racecourse Big Ears kneed Little Ears in the leg, then Little Ears licked Big Ear’s face, the Big Ears kneed Little Ears again and called him a nasty name then Little Ears punched Big Ears smack in his little elfy face. Later, Little Ears went to a nightclub and Big Ears sat outside sending him sweary text messages threatening extreme violence.

After a thorough investigation and properly-convened disciplinary hearings Santa decided that both elves were guilty of gross misconduct, but he decided not to dismiss Big Ears, because being punched by Little Ears meant he was provoked into sending the rude text messages, so he got a final written warning instead.

The Employment Tribunal decided that dismissing Little Ears was unfair, because they had both provoked each other and Little Ears had been treated inconsistently when compared to Big Ears. The Employment Appeal Tribunal said ‘what a load of nonsense, if you can’t sack an elf for punching another elf in the face then the North Pole’s gone mad’.

You might recognise that the above festive tale is based on the facts of MBNA Ltd v Jones, a recent EAT case which has been reported on many of the update services. As many weary HR professionals will attest, the broad facts of the case are extremely common. It’s unusual for misconduct cases like this to reach the EAT, but this one did because the Employment Tribunal misapplied clear and helpful case law which has provided guidance on ‘inconsistency’ arguments since 1981 (an unusual example of consistency in the employment law world).

Basically, a dismissal will only be rendered unfair due to inconsistent treatment of employees if their situations are properly and genuinely comparable. As long as the employer has a reason for differentiating (in this case, only one employee had actually punched the other, and his misconduct threatened the reputation of the bank, whereas the other’s didn’t) then the inconsistency argument fails. It is irrelevant that the Employment Tribunal would have treated one (or both) employees differently had it been taking the decision itself.

So, with the festive season fast approaching, the MBNA v Jones case provides a good reminder of two top tips:

1. Think now about steps you should take to minimise Christmas Party issues.

2. Where misbehaviour does occur and more than one employee is involved (whether at a Christmas party or otherwise) make sure your decision-makers have clear reasoning behind any distinctions they make between the miscreant employees, particularly around level of sanction. Dismissal (and warning) letters should contain enough information to evidence that reasoning (although you will want to be careful about going into detail regarding the outcomes of another employee’s disciplinary hearing).

Joanne Sefton
Barrister, Menzies Law

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