phone    020 8974 7490   

Kingston Upon Thames and Central London, Waterloo


Unfair dismissal - the correct legal test

Screen Shot 2016-05-06 At 09.39.04

When a bank employee was dismissed for gross misconduct as a result of his behaviour at an office function, the Employment Tribunal (ET) found that his dismissal was unfair because of the inconsistency of his treatment when compared with that of a colleague who was given a final written warning for his part in the incident. The ET's approach was criticised by the Employment Appeal Tribunal (EAT), however, which overturned the decision on appeal (MBNA Limited v Jones).

Mr Jones was employed by MBNA Limited. In 2013, the bank held a social event although staff were told that it was a work event, so normal standards of conduct would apply and any misconduct would be dealt with under the bank's disciplinary procedures.

Mr Jones and a colleague, Mr Battersby, were drinking throughout the evening. Eventually, things turned nasty when Mr Battersby kneed Mr Jones in the leg when he saw that he had his arms around Mr Battersby's sister. Mr Jones punched Mr Battersby in the face. After the event, Mr Jones went to a club. Mr Battersby waited outside and sent Mr Jones seven texts, threatening to ‘rip his head off’. There was no more trouble between them, however. Mr Battersby did not act on his threats, which were not received by Mr Jones until the following day.

MBNA held a disciplinary investigation. The manager conducting the procedure was unconvinced by Mr Jones's claim that he had acted in self defence after substantive provocation, and the decision was taken to dismiss him for gross misconduct on the basis that his behaviour had the potential to seriously impact on the reputation of the bank. Mr Jones appealed, but the bank's decision was upheld. Whilst it acknowledged that there had been some provocation, this was not considered sufficient to justify his actions.

In the meantime, Mr Battersby had been given a final written warning. While his texts were found to be 'of an extremely violent nature' and were 'wholly inappropriate', they were sent after the event itself, following provocation, and MBNA did not believe he intended to follow through on his threats.

The ET upheld Mr Jones's claim of unfair dismissal on the basis that the punch had been an overreaction to provocation from Mr Battersby and that there was an unfair disparity between MBNA's treatment of the two men. Had they both lost their jobs for what were 'proven acts of gross misconduct', their dismissals would have been fair.

In upholding MBNA's challenge to that ruling, the EAT found that dismissal was a reasonable response to Mr Jones's behaviour, which is the central question when applying the test set out in Section 98(4) of the Employment Rights Act 1996. Whether or not the employer was unduly lenient to another employee was 'neither here nor there'.

Furthermore, the ET had failed to apply the guidance on disparity of treatment laid down in Hadjioannou v Coral Casinos Limited. The circumstances of Mr Jones and Mr Battersby were not sufficiently similar to render an argument on disparity of treatment appropriate. A distinction could properly be drawn between a deliberate punch in the face during a work event and threats issued afterwards that were not, in fact, carried out.

In the light of the ET's finding as regards the seriousness of Mr Jones's conduct, the EAT was in a position to substitute a ruling that the dismissal was fair in the circumstances. Contact us for advice on any disciplinary matter.

Your details

Please note we are unable to offer legal aid


Fields marked with a * must be completed.

  • We engaged Rose and Rose to recover a bad debt. Their service was excellent and we recovered the full amount plus costs with minimal effort. I have no hesitation in recommending their services and we will certainly use them in the future.
  • Trustworthy and efficient service from this team of friendly and professional solicitors. I would recommend Rose and Rose.
  • Rose and Rose Kingston provided extensive support to me whilst selling my property. We had a number of challenges to overcome but at no point did I feel I did not know what was happening in the process. They are extremely helpful, supportive and explained everything to me in simple terms. In future I will only recommend and use Rose and Rose.
  • We have recommended the services of Rose and Rose many times to either our clients selling properties or their buyers. Every time we have a transaction where they are involved it gives us great reassurance that the deal will be done efficiently, that updates are always available and that the parties involved have a clear understanding of the transaction. Those that we have referred to Rose and Rose have always been extremely happy with the service and have achieved the right end result.
  • Rose and Rose are now officially my favourite and most helpful solicitor.
  • Rose and Rose were exceptional to deal with. Instructed by a buyer of ours they were nothing but helpful and pleasant throughout the transaction, always at the end of the telephone if needed, and as a result of their obvious expertise the sale went through effortlessly. I can highly recommend them.
  • Both my sister and I used Rose and Rose for our conveyancing. We were extremely happy with the service provided, it was professional, friendly and expedient. I would definitely use Rose and Rose in the future.
  • Rose and Rose provided an excellent service when it came to selling our property and buying another. We were able to contact them when needed and we found them approachable and efficient. We would have no hesitation in recommending this solicitor.
  • I have no hesitation in recommending Rose and Rose who acted for me in the sale and purchase of my home.
  • Rose and Rose are the best solicitors that I have dealt with, and the only one I will be dealing with from now on. The professional approach and service they offer is second to none. Their ability to always keep you informed with what is going on has been extremely helpful and given me peace of mind.
  • Rose and Rose recently handled the conveyancing for the sale of our property and we were extremely impressed with the level of service we received. The overall process was quick and efficient. Although these matters can be extremely stressful the staff involved were friendly, thoughtful and approachable yet totally professional throughout. This in effect enabled the sale to proceed relatively smoothly. I would therefore not hesitate to employ the services of Rose and Rose in the future. Robert P
  • Rose and Rose have helped me with conveyancing but also with my divorce and not only have they done a good job, they have ensured my costs have been contained as much as possible. They offer an exceptionally good service and explain the law in plain English, they are very friendly and easy to deal with.
  • Great, helpful advice and support from people who understand what you want and deliver in a straightforward manner in plain English. I highly recommend Rose and Rose Solicitors in Kingston.
  • I have used Rose and Rose Solicitors on a number of occasions and have always found them to be extremely friendly and helpful. They always provide excellent advice and do so in a cost effective manner whilst maintaining an extremely personal service and they really seem to care about you. I would have no problem in recommending their services to any of my friends, family and clients.
  • Rose & Rose Solicitors have a surprisingly refreshing approach to the Law. Whilst obviously highly committed and professional they are relaxed, friendly and approachable making all your dealings with them, in often very difficult circumstances, as stress free as possible. Highly recommend. Rose & Rose is a well rounded solicitors' firm, they have managed to help us through our business legal requirements with their fast, reliable and cost effective service. They have met our demand and need every time. Rose & Rose in Kingston successfully assisted my girlfriend's business in clawing back a large chunk of bad debt that a company were refusing to pay. I was so impressed with the simplicity and ease in which they dealt with the situation that I will use Rose & Rose Solicitors to represent all my own company's legal requirements including employment contracts, conveyancing, dispute resolution, etc. Rose and Rose provide their considerable expertise in a relaxed, friendly and unstuffy way. They have assisted my company and my clients and I would not hesitate to recommend them.
  • We have been involved in a number of sales where Rose and Rose have represented either the buyer or seller and on every occasion they have been a pleasure to deal with. The team make themselves very available and always respond to messages and emails quickly and always seem to be in command of a situation. This is so important to us as we need to keep our customers up to speed at all times. We aspire to delivering excellent service to our customers and they certainly help a great deal in this respect. Our customers who have used Rose and Rose have all been complimentary about the service they have received and how easy everyone there is to deal with.