Work disciplinary consistency counts

by Laura Morrison. Laura Morrison is an employment lawyer with Maclay Murray & Spens LLP and a member of the firm’s Food and Drink team,
by Laura Morrison. Laura Morrison is an employment lawyer with Maclay Murray & Spens LLP and a member of the firm’s Food and Drink team,
Inconsistency of treatment is a common complaint from employees and can have legal consequences when it comes to a dismissal for misconduct – as a recent case involving physical violence at a work event highlights.\

What was the situation which led to a dismissal?
The events that led to the tribunal took place at a work event at MBNA, a financial services firm, where the company had reminded staff that normal rules and procedures regarding conduct applied. Two employees, Mark Jones and Andrew Battersby, became involved in an altercation which escalated from ‘banter’ and resulted in Mr Jones punching Mr Battersby in the face. After Mr Jones left the event, Mr Battersby sent him text messages threatening physical violence, although he did not carry out the threat.

What action did the company take?
MBNA subsequently carried out an investigation and held a disciplinary hearing with each of the men, conducted by the same manager. Mark Jones was dismissed for gross misconduct after the manager found that there was no substantial provocation prior to him punching Mr Battersby in the face, and concluded that there was a risk of damage to the company’s reputation. In Mr Battersby’s case, while his actions in sending the threats of violence were also seen as gross misconduct, he was given a final written warning rather than being dismissed, with the manager finding that it was an immediate reaction to being punched.

What happened at the Employment Tribunal?
The Employment Tribunal found that Mr Jones had been unfairly dismissed. It concluded that, had both men been dismissed, the dismissals would have been fair. The tribunal found that there had been ‘unreasonable inconsistency’ in MBNA’s treatment of the two employees.
However, the Employment Appeal Tribunal allowed the appeal. It found that the original tribunal had wrongly focused on Mr Battersby’s treatment, rather than concentrating on whether MBNA had acted reasonably in dismissing Mr Jones.

What guidance did the Employment Appeal Tribunal give?
The EAT confirmed that, where it is reasonable to dismiss an employee, the fact the employer was unduly lenient to another staff member may not necessarily be relevant. Where there are ‘truly parallel’ circumstances, it is likely to be unfair to dismiss in one case but not another. However, truly parallel circumstances are rare. In the MBNA case, punching another employee in the face was not truly parallel to sending threatening text messages which were not acted upon, even though they formed part of the same incident.

What does this mean for managers hearing disciplinaries?
The EAT’s conclusions certainly do not mean that managers can ignore allegations of inconsistency. Particular care must be taken to consider the facts of each case where more than one individual is involved, and to decide if the circumstances are ‘truly parallel’ or not.
Extra care is also advised where conduct similar to that in the disciplinary hearing has previously been treated less seriously. That may lead employees to believe that certain types of conduct will be disregarded or treated leniently, and a decision to dismiss for an apparently similar incident is likely to lead to a tribunal.