Two employees, both found guilty of gross misconduct (one for kneeing in the leg and sending text messages of a violent nature, the other hitting his colleague in the face).

The former was dismissed, the latter was not. Was this fair?

Background

Both the employees in question, Mr Jones and Mr Battersby, were employed by MBNA, and attended a work event at Chester Race Course in November 2013. They drank freely during the event. At one point, Mr Jones had his arm around Mr Battersby’s sister, and this led to Mr Battersby kneeing Mr Jones in the leg. Mr Jones retaliated, and punched Mr Battersby in the face. In response to this, Mr Battersby sent a series of threatening texts to Mr Jones outside the event, but did not act on any of these.

MBNA found that both employees were guilty of gross misconduct, but dismissed Mr Battersby only. Mr Battersby claimed that it was unfair to dismiss him and not Mr Jones, because the circumstances were so similar. When they considered the case, the Employment Tribunal agreed with Mr Battersby, and found the dismissal to be unfair, mainly because the “defence of provocation” had been applied differently and unfairly between the employees.

The Appeal Tribunal viewed the leading authority on disparate treatment in unfair dismissal cases, the case of Hadjioannou v. Coral Casinos, which states that disparate treatment will only be relevant in unfair dismissal cases where circumstances are “truly parallel”. In this case, the circumstances were not truly parallel, and it would have been right for the Tribunal to focus in on Mr Battersby only.

Implications

Employers can sometimes be too wary of the disparate treatment principle in unfair dismissal. As Hadjioannou makes clear, circumstances need to be truly parallel for this to bite. Furthermore, Hadjioannou points out that this approach is only relevant where the disparate treatment has led members of staff to believe that their behaviour will be condoned or where it indicates that the reason put forward by the employer for the dismissal was not the true reason.

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Updates: For employers: Unfair and constructive dismissal | For employees: Unfair dismissal |

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