Dismissing employees – Fair treatment for all?


CIPDApplying alternative sanctions to employees may not make a dismissal unfair

In the case MBNA v Jones, the EAT had to decide whether treating employees guilty of gross misconduct inconsistently could result in a dismissal being unfair.

Dismissals for gross misconduct will only be fair if the employer:

  • believes the employee is guilty of gross misconduct
  • has reasonable grounds for believing this is the case
  • has carried out as much investigation as was reasonable in the circumstances at the time it formed that belief.

Jones was employed as a collections officer from February 2006 until December 2013. He attended a work event at Chester Racecourse in November of that year with his colleagues. Prior to the event, the employer explained this was a work event and that normal standards of conduct and behaviour would apply. Jones and a colleague had been drinking before the event and had been engaged in conduct originally described as “banter”.

At one point in the evening, Jones had his arms around the colleague’s sister, who was also attending the event, and when the colleague spotted this, he kneed Jones in the leg, who responded by punching him in the face. Later that night, while Jones was at a club with other staff members, the colleague whom Jones had punched sent a number of violent text messages to him, including one threatening to “rip his head off”.

After the incident, the employer investigated the event and held disciplinary hearings for both Jones and his colleague. Jones was dismissed for gross misconduct but the colleague only received a final written warning, on the grounds that the threatening text messages he sent were a direct response to Jones punching him. Jones brought a claim for unfair dismissal.

The employment tribunal found that Jones’ dismissal was unfair because the employer’s treatment of the two employees had been wholly inconsistent. Although the actions of both men were considered to amount to gross misconduct, Jones was dismissed while his colleague only received a final written warning.

The tribunal also thought it wrong that the employer accepted that the colleague’s acts were defensible, because he had been provoked, whereas Jones punching him was not defensible even though he was provoked by the colleague kneeing him in the leg. This disparity of treatment meant Jones’ dismissal was unfair. The employer appealed.

The Employment Appeal Tribunal (EAT) allowed the appeal. The central question in deciding if a dismissal for gross misconduct was fair was whether it was reasonable for the employer to dismiss the employee. If it was, then the mere fact that the employer was unduly lenient to another employee is irrelevant.

The EAT said that in order for differential treatment to make a dismissal unfair, the circumstances have to be sufficiently similar so as to be “truly parallel”. The EAT drew the distinction between Jones’ actions, who punched a colleague in the face during a work event, and the colleague, who did not carry out the threat he had made. So, the circumstances were not sufficiently similar to be considered relevant to the unfair dismissal claim.

This case acts as a useful reminder that tribunals must focus on the three-part gross misconduct dismissal test, and should not be overly influenced by differences in the employer’s treatment of other employees, even where this has some relevance.

It also makes clear that employers have a degree of flexibility in dealing with misconduct issues arising from the same scenario and, in the majority of cases, disparity of treatment will not be relevant to determining whether a dismissal was unfair. This acts as a reassurance to employers that they will rarely be bound by a decision made about another employee, and are entitled to impose disciplinary sanctions differently.

Paul Mander  (partner and head of employment and Kizzie Applebee is a trainee at Penningtons Manches LLP) 20 November 2015 Personnel Management

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