In the case of MBNA Ltd v Jones, the Employment Appeal Tribunal (EAT) highlighted the degree of flexibility that employers have when disciplining employees for similar allegations of misconduct, overturning an Employment Tribunal’s finding that the dismissal of an employee had been unfair.
Under the Employment Rights Act 1996 (the Act), misconduct is a potentially fair reason for dismissal. This will depend on whether, in the circumstances, the employer acted reasonably in treating that reason as sufficient to justify dismissal.
In deciding whether a dismissal for misconduct is fair, the dismissal must fall within the range of ‘reasonable responses’ that a reasonable employer in those circumstances and in that business might have adopted.
MBNA Ltd v Jones
Case Facts
Mr Jones and Mr Battersby were employed by MBNA Ltd. Mr Jones and Mr Battersby were attending a work event, prior to which they had been warned that normal standards of conduct would apply and that any misbehaviour would be subject to MBNA’s disciplinary procedures and guidelines.
The employees had been drinking alcohol both before and during the event. During the evening Mr Jones had his arm around Mr Battersby’s sister, leading Mr Battersby to knee Mr Jones in the leg. The two proceeded to fall out and Mr Jones punched Mr Battersby in the face. Mr Jones then left the event and went to a club.
As the evening progressed, Mr Battersby sent seven text messages to Mr Jones threatening him with physical violence. These threats were never carried out.
MBNA Ltd investigated the series of events and conducted disciplinary hearings, culminating in Mr Jones being dismissed, whilst Mr Battersby only received a final written warning. MBNA Ltd’s reasoning behind this decision was that Mr Battersby’s behaviour was not significant enough provocation to justify Mr Jones’ subsequent conduct in punching Mr Battersby in the face. The series of texts from Mr Battersby were said to be made as an immediate response to Mr Jones punching him.
Mr Jones brought a claim in the Employment Tribunal for unfair dismissal. The Tribunal found that the inconsistency of treatment by MBNA Ltd in dismissing Mr Jones and serving a final written warning on Mr Battersby was unreasonable and that the “defence of provocation” was applied differently to the two men during their disciplinary hearings.
MBNA Ltd appealed against the Employment Tribunal’s decision.
Decision
The EAT allowed the appeal, holding that when considering issues of disparity of treatment between employees, tribunals must follow the statutory test in the Act. The EAT held that the Employment Tribunal had wrongly focused on how Mr Battersby was dealt with, when the focus should have been on whether MBNA Ltd had reached reasonable conclusions and responded reasonably in dismissing Mr Jones.
The EAT clarified that disparity of treatment will occasionally be relevant to reasonableness, but only very rarely and the circumstances must be “truly parallel”. Mr Battersby did not in fact carry out any acts of violence. It affirmed guidance from previous case law, which stated that where two employees receive different sanctions, a dismissal will only be unfair in two situations:
- Where the employer has previously treated similar behaviour less seriously; and
- Where employees in “truly parallel circumstances” arising from the same incident are treated differently (Hadjioannou v Coral Casinos Ltd).
With respect to provocation, the EAT said that this is a mitigating factor to be considered by the employer, and it is not a total defence.
Comment
This case emphasises that inconsistent treatment will not automatically make a dismissal unfair.
It serves as a reminder to employers that all the circumstances must be considered when sanctioning employees for their similar misconduct, and those similar situations should be dealt with in a similar way. However, employers now have the reassurance that it is rare that circumstances will be “truly parallel” and in such a case they are entitled to impose differing disciplinary sanctions. However, employers should ensure that they can explain their reasoning behind any disparity of treatment.
For more employment law advice or to comment on this article, please contact us to speak to a member of our employment law team.