The law says that employers only have to apply the same sanctions when disciplining an employee if the circumstances are “truly parallel”. In MBNA Ltd v Jones, the Employment Appeal Tribunal (EAT) confirmed that there are very few cases in which the circumstances will be sufficiently similar to require employers to administer the same sanctions.
Basic facts
In November 2013, MBNA held an evening event at Chester Racecourse to celebrate its 20th anniversary. Staff were told that as it was a work event, normal standards of behaviour would apply. Mr Jones attended, along with another colleague, Mr Battersby. Both men had been drinking before the event started.
At the event, following some alleged “banter” Mr Battersby kneed Mr Jones in the back of his leg. He then licked Mr Battersby’s face. Later, Mr Battersby kneed Mr Jones again. This time, Mr Jones responded by punching Mr Battersby in the face. After Mr Jones went onto a club, Mr Battersby waited outside and texted him seven times making violent threats about following him back to where he was staying. He did not carry out the threats and Mr Jones did not receive the texts until the following day.
After bringing disciplinary charges against both men, MBNA dismissed Mr Jones for gross misconduct but only issued Mr Battersby with a final written warning on the basis that he had been provoked and did not intend to carry out his threats. Mr Jones claimed unfair dismissal.
Tribunal decision
The tribunal found that the manager who had conducted the two investigations had made an unreasonable assessment about Mr Battersby’s intentions in terms of carrying out his threats. As such his decision not to dismiss Mr Battersby was unreasonable.
The manager had also applied the defence of provocation differently in relation to the two men. Although he decided that Mr Battersby’s behaviour towards Mr Jones was not provocative “beyond reasonable measure”, he found that Mr Jones’ behaviour had provoked Mr Battersby to send text messages several hours later.
The two men had therefore been treated differently and the dismissal was unfair. It also went on to hold that if both men had been dismissed for what were clearly acts of gross misconduct, both dismissals would have been fair.
EAT decision
The EAT found that the tribunal had failed to apply the decision in the case of Hadjioannou v Coral Casinos Ltd in which the appeal tribunal held that unless there were “truly parallel circumstances”, employers could apply different sanctions.
If the judge had expressly addressed the question of whether the circumstances were similar enough, he would have been bound to conclude they were not. Mr Jones punched Mr Battersby in the face during a work event although he had been told that the company would apply its normal disciplinary rules. Although Mr Battersby’s conduct later that evening was plainly reprehensible, he did not in fact carry out his threat in the workplace or anywhere else for that matter.
Instead of following the guidance in Hadjioannou and the statutory test in section 98(4) of the Employment Rights Act 1996 (whether the company had reached reasonable conclusions and applied a reasonable sanction with regard to Mr Jones), the tribunal had considered whether the manager had reached “unreasonable conclusions” with regard to Mr Battersby. It had also relied on a “defence of provocation”, despite the fact that the company was not required to apply such a test.
The EAT substituted a finding that the dismissal was fair in the circumstances of the case.