Case update (2): Unfair dismissal – equal treatment?

Summary: When will disparity of treatment in disciplinary proceedings affect the fairness of a dismissal?

Only when the employees’ circumstances are “truly parallel” says the EAT in MBNA Ltd v Jones available here.

Facts: There was an incident at a work social event between two employees, Mr Battersby and Mr Jones. This was initially “fun/banter” with Mr Jones licking Mr Battersby’s face and Mr Battersby kneeing Mr Jones in the leg. However, later in the evening Mr Battersby observed Mr Jones with his arms around Mr Battersby’s sister. Mr Battersby again kneed Mr Jones in the leg. Mr Jones proceeded to punch Mr Battersby in the face.  Mr Jones then left the event and a while later Mr Battersby left him several abusive voice messages threatening physical violence.

The employer investigated the incident and dismissed Mr Jones for gross misconduct. Mr Battersby, on the other hand, was given a final written warning for his behaviour. The employer found that a lesser sanction was appropriate as he was provoked to send the threatening messages having been punched in the face. Mr Jones brought a claim for unfair dismissal and argued that the sanction imposed upon him should have been consistent with the treatment of Mr Battersby in view of the similarities between their offences.

The Tribunal upheld Mr Jones’ claim and that the decision to dismiss Mr Jones was unreasonable on the basis that the defence of provocation had been applied differently to Mr Jones and Mr Battersby and this was unreasonable. The Tribunal concluded that “the respective decision to dismiss [Mr Jones] and give Mr Battersby a final written warning was as a result of the different provocation test applied to both, and this amounted to an unreasonable disparity of treatment between the two of them during the respective disciplinary hearings. This rendered [Mr Jones’] dismissal unfair.”

The employer successfully appealed against the decision and, in reaching its conclusion, the EAT emphasised that the relevant test was whether the sanction imposed upon Mr Jones was within the band of reasonable responses. The EAT stated that “if it was reasonable for the employer to dismiss the employee… the mere fact that the employer was unduly lenient to another employee is neither here nor there”.

However, there are three sets of circumstances where inequitable treatment can raise a question mark over fairness: (a) where the treatment of one employee leads another to believe that a certain act or course of conduct will not lead to his dismissal but then it does; or (b) where evidence of treatment in other cases suggests that the purported reason stated by the employer is not the real one; or (c) as here, where evidence of decisions in “truly parallel circumstances” may support an argument that it was not reasonable to dismiss in the circumstances.

The EAT referred to the inherent improbability of “truly parallel” disciplinary cases where inconsistency of treatment would render a dismissal unfair. “Truly parallel” is a high threshold and small distinctions can easily be relied on to tip the balance – an expression of contrition by one employee and not the other, for example, or relative inexperience or some element of provocation, as here. In this case, the EAT found that it was perverse not to draw a distinction between a deliberate punch in the face and a threat of physical violence. It therefore held that the behaviour of Mr Jones and Mr Battersby was not sufficiently similar to bring consistency of treatment into the question of reasonableness.

Implications: While it is still critical for employers to act consistently when considering disciplinary matters, this is a useful reminder that the decision to dismiss an employee should be primarily based on their own actions. The test applied by Tribunals in an unfair dismissal claim will be whether the actions of the employee were sufficiently serious to amount to gross misconduct.   The Tribunal should not be distracted from determining whether dismissal was in the band of reasonable responses by the actions and treatment of another employee.

However, if circumstances between employees’ are “truly parallel” then a difference in treatment may support an argument that it was not reasonable to dismiss in the circumstances. This is likely to be rare and Tribunals would need to look at all the circumstances very carefully before deciding that they are sufficiently similar.