In judging the fairness of a dismissal for misconduct, one of the issues that an Employment Tribunal will consider is consistency. If two employees are found guilty of the same misconduct and one is dismissed but the other is not, then this inconsistency may render the dismissal unfair. In MBNA Ltd v Jones, the Employment Appeal Tribunal stated that where an Employment Tribunal considers an argument that disparate sanctions should make a dismissal unfair, it should examine the issues carefully, determine whether there were key differences between the two (or more) cases, and decide if the decision to dismiss fell outside of the range of reasonable responses in the circumstances.

The facts

Mr Jones was employed by MBNA Limited (“MBNA”), a credit card issuer, from February 2006 to the date that his dismissal took effect, 19 December 2013.

On 8 November 2013 MBNA held an event at a racecourse to celebrate its 20th anniversary. Staff were told that this was a work event and that normal standards of behaviour and conduct would apply.

During the event at the racecourse Mr Jones and a colleague of his, Mr Battersby, became involved in an altercation: Mr Battersby kneed Mr Jones in the back of his leg and Mr Jones licked Mr Battersby’s face. This was regarded by onlookers as “fun/banter”. However, later in the evening Mr Jones had his arms around Mr Battersby’s sister, who was also attending the event. Mr Battersby kneed Mr Jones in the leg again and Mr Jones responded by punching Mr Battersby in the face.

After the event at the racecourse finished Mr Jones and other colleagues went to a club. Mr Battersby knew where Mr Jones had gone and waited for him outside the club. Mr Battersby proceeded to send Mr Jones a number of aggressive texts, threatening him physically. Mr Jones did not receive these texts until the next morning.

MBNA undertook a disciplinary process for both Mr Jones and Mr Battersby, accusing them of misconduct. Mr Jones was charged with, among other things, punching Mr Battersby and behaviour which could seriously impair the reputation of MBNA. Mr Jones was subsequently dismissed for gross misconduct, primarily for starting the altercation with Mr Battersby and for acting inappropriately inside a venue which was branded as an MBNA event, which could have impacted upon the reputation of MBNA. Mr Battersby was not dismissed but was issued with a final written warning.

Mr Jones pursued a claim for unfair dismissal against MBNA after his employment was terminated.

The Employment Tribunal found that Mr Jones’ dismissal was unfair, and that the dismissal had been unfair because an inconsistent sanction had been applied. He considered that if both employees had been dismissed for gross misconduct then both dismissals would have been fair.

MBNA appealed the decision, arguing that the Employment Tribunal had failed to apply the case of Hadjioannou v Coral Casinos Limited and that there were clearly key differences as to the conduct of Mr Battersby and Mr Jones, principally the fact that Mr Jones had punched Mr Battersby.

The Employment Appeal Tribunal upheld MBNA’s appeal, holding that the Employment Tribunal had not applied the guidance in Hadjioannu by considering whether the cases of Mr Battersby and Mr Jones were sufficiently similar to consider them “parallel circumstances”, and looking at the particular circumstances of the individual employee’s case.

What does this mean for me?

This case serves as a reminder that, should two or more employees be accused of the same or similar misconduct, an inconsistent disciplinary sanction will not in and of itself render the dismissal unfair unless the circumstances of the employees were truly similar (or “parallel”, as the Court of Appeal described in Hadjiouannu). If there are similar allegations made against two employees then the employer must be careful to investigate and carry out a disciplinary process and, if it wishes to impose disparate sanctions, it must delineate the reason why it is doing so.

Why is this case significant?

This case reinforces that employers have a significant amount of leeway in choosing what sanctions to put in place for misconduct, and that a disparate sanction will normally be unfair only if no other reasonable employer would have made that decision. If an employer undertakes a fair and thorough investigation, undertakes a fair disciplinary process, and makes a considered decision as to what sanction should be used to punish misconduct, then it will normally be difficult for an employee to challenge the fairness of that decision.

Case: MBNA Ltd v Jones UKEAT/0120/15/MC

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