Unfair dismissal: disparity of treatment

In November 2013, an employer organised a social event at a racecourse. Prior to the event it was made clear to staff that this was a work event and that normal standards of behaviour and conduct would apply. Employees Mr Jones and Mr Battersby attended, along with Mr Battersby’s sister. An Employment Tribunal heard that both men had been drinking, prior to and during the event.

At some point during the evening, Mr Jones put his arm around Mr Battersby’s sister which led Mr Battersby to “knee him in the leg”. As a result, Mr Jones punched Mr Battersby in the face. Later, following the event, Mr Battersby was outside a club where he knew Mr Jones to be inside. He sent him several texts which threatened Mr Jones with violence. These threats were never carried out and there were no further incidents between the two men. The texts did not in fact arrive until the following day.

Following disciplinary hearings, Mr Jones was dismissed and Mr Battersby was issued with a final written warning. The employer decided that, in punching Mr Battersby, Mr Jones had committed gross misconduct while the text messages sent by Mr Battersby could be seen as a response to having been punched. Mr Jones brought a claim for unfair dismissal which was upheld by an Employment Tribunal. The Employment Tribunal cited the different treatment afforded to Mr Jones and Mr Battersby which had arisen out of the same incident.

The Employment Appeal Tribunal (EAT) disagreed. Although there may be times where disparity of treatment in disciplinary proceedings will lead to a finding of unfair dismissal, this is only likely where there are “truly parallel circumstances”. It will only be in a few cases where the circumstances are sufficiently parallel to lead to unfairness. In this case, the employer was entitled to set different punishments for the two employees, based on the circumstances of their actions.

MBNA Limited v Jones UKEAT/0120/15

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