Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

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

About

Redmans Employment Team deal with employment matters for both employers and employees, including drafting employment contracts and policies, advising employers and employees on compromise agreements, handling day-to-day HR issues, advising on restructures, and handling Employment Tribunal cases for both employers and employees Call 020 3397 3603 to speak to one of the members of our employment team or email us on enquiries@redmans.co.uk. Redmans have offices in Richmond, Chiswick, Hammersmith, Fulham, Kingston, Wimbledon, Ealing, Kings Cross and Marylebone (meetings strictly by appointment only).

Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

Share →

Our awards

Request a callback

Your name

Your email

Your telephone number

Contact us

Please feel free to discuss your own position and concerns. Contact your nearest office on:

T: 020 3397 3603
E: enquiries@redmans.co.uk
W: www.redmans.co.uk

Testimonials

4.62 Average

39 Reviews

Katelyn

The solicitor communicated well with me and made sure I understood everything. He did everything needed for my settlement agreement and tried to get the wording changed in my favour too.

Posted 3 days ago

Anonymous

Redmans provided excellent services

Posted 3 days ago

Sibel U

Excellent service

Posted 3 days ago

Peter S

I was very happy with the level of advise I received from Caroline Lewis, and a very professional service fron Chris, The advice given really helped me and I was comfortable to sign the settlement agreement following my redundancy. I would be more than happy to recommend your services to others.

Posted 3 days ago

Derek S

I very much appreciated the help provided by Redmans in the settlement agreement agreed with my former employer.

Posted 4 days ago

Waseem M

It was the first ime I used Redmans Solicitors and to be honest, thety were amazing. Rana Tandon and Chris Hadrill were out of this world. They made the process as simply and smooth as can be. Thank you so much for all your support over the last week.

Posted 2 weeks ago

Anonymous

Worked very quickly considering right deadlines - and gave great advice

Posted 2 weeks ago

Anonymous

Redmans provided me with excellent advice at a very stressful time. The calm, confident and extremely professional manner in which my solicitor handled my case made the issue much easier to deal with and I was very impressed with the level of service I received.

Posted 2 weeks ago

Anonymous

Immediate response to my initial enquiry. Very clear throughout the whole process and thorough and great communication which worked really well during quite a stressful time. Chris Hadrill was extremely helpful and made me feel at ease.

Posted 3 months ago

Nick D

I received a very professional service from Chris. The advice given really helped to leave me comfortable to sign the settlement agreement following my redundancy. Would be happy to recommend your services to others.

Posted 3 months ago

Anonymous

Excellent service from initial contact to deliverables.

Posted 4 months ago

Virginia K

Yes, Chris Hadrill answered all my questions and I feel more confident with my current situation

Posted 4 months ago

Anonymous

Chris Hadrill was referred to me my a friend of mine. I found the service to be efficient, quick and like Chris's direct approach to my work. Well done and thank you Chris!

Posted 4 months ago

Andy W

Very prompt & structured service that helped put my mind at rest at a difficult time

Posted 4 months ago

Anonymous

I have found Redmans to be very helpful, diligant and thoroughly professional when dealing with them, plus they gone that extra mile for me !

Posted 4 months ago

Anonymous

Thank you to Chris Hadrill at Redmans for his assistance in settling my case. I contacted him at the very last minute and he was happy to help me and managed to get everything done on time and in a very professional manner. I will definitely be happy to work with him again .

Posted 4 months ago

Redman's provided excellent legal employment advice for me during a difficult time in my employment. Chris was my lawyer, super efficient, quick, reliable and clearly very experienced in the matter. Could not ask for a better law firm to deal with your query if you are in need of some help. Would definitely use them again in the future. Highly recommending Chris.

Posted 8 months ago

Steven

Chris Hadrill was very professional and responsive. I would highly recommend him

Posted 8 months ago

Dinah

Very Efficient, with very quick email reply’s. I had a matter that needed resolving within a very short space of time and Redmans Solicitors were great with dealing with my matter quickly.

Posted 8 months ago

Ankar

At Redmans the solicitor that was dealing with me was Chris. He dealt with my situation smoothly with clear guidance and explanation

Posted 8 months ago

Anonymous

Clear, concise advice and guidance delivered by an experienced and very capable solicitor, within the timelines required

Posted 9 months ago