Safia Tharoo, Barrister, 42 Bedford Row

As the festive season begins, employers and employees increasingly partake in social functions which are considered to be work events. Inevitably, quantities of alcohol are consumed and instances of inappropriate behaviour arise. Employers sometimes have to deal with disciplinary sanctions against more than one employee, arising out of the same factual circumstances, and the issue of consistency is a live
one.

This was the issue that the Employment Appeal Tribunal had to deal with in the case of MBNA Ltd v Jones (UKEAT/0120/15). MBNA held an event at Chester Racecourse to celebrate its 20th anniversary. This was considered as a work event and all employees were made aware of this.

Mr Jones and Mr Battersby were both employees of MBNA and knew each other. They had both begun drinking before the event began. Early on in the event, there was an interaction between them which was considered by those who saw it as no more than banter; Mr Jones licked Mr Battersby’s face and Mr Battersby kneed Mr Jones in the back of his leg. Later on in the evening, Mr Battersby kneed Mr Jones again; Mr Jones responded by punching Mr Battersby in the face.

After the event ended, Mr Jones and some of his colleagues went to a club. Mr Battersby knew he was there and waited outside. He sent Mr Jones seven text messages, saying (among other threats) that he would follow Mr Jones to where he was staying and ‘rip your f***ing b*****d head off’. However he did not in fact carry out his threats. Mr Jones did not actually see the text messages in the morning.
Both Mr Jones and Mr Battersby were charged with misconduct by MBNA.

Mr Jones argued that he had punched Mr Battersby in self-defense as he had been kneed in the leg on two occasions. However, witnesses who were interviewed said that Mr Jones had instigated the altercation with Mr Battersby by licking his face, and that the there was no aggression or force in the ‘kneeing’ incident.

The disciplinary manager therefore found that there was no substantive provocation of Mr Jones that justified his actions in punching Mr Battersby in the face and therefore he was dismissed for gross misconduct. This decision was upheld on appeal. The same disciplinary manager considered the case against Mr Battersby. Whilst finding that the text messages were wholly inappropriate, he considered the provocation involved in being punched in the face, the fact that he did not believe that Mr Battersby intended to follow through with these threats and the fact that Mr Battersby had not in fact carried out the threats. Mr Battersby was issued with a final written warning.

Mr Jones brought a claim to the employment tribunal, claiming that he had been unfairly dismissed. A key plank of his case was that Mr Battersby had not been dismissed despite the similarities in their cases. The employment tribunal found this to be a convincing argument and that Mr Jones’ dismissal was unfair, even though the employment tribunal also noted that had both individuals been dismissed, then both dismissals would have been fair given the proven and unarguable acts of gross misconduct.

MBNA appealed to the Employment Appeal Tribunal. They noted that the mere fact that the employer had been unduly lenient in another instance, was neither here nor there.

It only became relevant if there were ‘truly parallel circumstances’ such that it was unreasonable for the employer to dismiss the employee. The EAT considered that the employment tribunal’s criticisms of the cases had focused on the fact that Mr Jones’ provocation had not been considered significant as compared to Mr Battersby’s.

However the tribunal’s function was to decide if a dismissal was fair and reasonable, acknowledging that there were a range of reasonable ways an employer might approach a case. Here, the employment tribunal should have considered that the circumstances of Mr Jones and Mr Battersby were not truly parallel, and that there was a distinction between a punch in the face at a designated work event and a threat that was not carried out made afterwards. In those circumstances, the mere fact of a difference between the sanctions was not enough to make unfair what was otherwise a perfectly fair and reasonable dismissal. Therefore, the EAT reversed the decision of the employment tribunal.

Employers should therefore take note that the mere fact that disciplinary charges arise from the same set of facts does not of itself mean that the same sanctions should be applied. Careful consideration should be given to the nature and extent of an individual’s involvement, and any mitigation in their favour. The issue of consistency is only a relevant factor where the circumstances of employees can actually be considered to be so similar that it would be unfair not to treat them in the same way.