Unfair dismissal - the correct legal test

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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.

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