“Of course” I hear you cry. Surely that could never be an unfair dismissal?
In fact it was. A Tribunal held that an employee’s dismissal for punching a colleague was unfair. Why? Because the other employee involved in the incident was not also dismissed.
On appeal, the Employment Appeal Tribunal (‘EAT’) has recently overturned that Tribunal decision finding that the dismissal was fair.

Background
The case concerned Mr A and Mr B, both employees of MBNA (‘the company’), who knew one another and were attending a corporate anniversary event. All staff had been told that it was a work event, that normal standards of behaviour and conduct would apply and that any misbehaviour would be subject to the company’s procedures and guidelines.
Both Mr A and Mr B had been drinking before the event. There was said to be an initial altercation between them at the event when Mr A kneed Mr B in the back of his leg and Mr B licked Mr A’s face. Later in the evening, Mr B had his arm around Mr A’s sister and Mr A again kneed him in the back of his leg. Mr B then punched Mr A in the face.
Still later that evening, Mr B went on to a club away from the event. Mr A knew he was there and from outside sent Mr B a series of abusive text messages threatening violence, although the threats were not acted upon. Mr B did not receive the texts until the next day.
Following a disciplinary process, Mr B was dismissed for gross misconduct and Mr A was issued with a final written warning.

Claim
Mr B brought a claim of unfair dismissal to an Employment Tribunal which found it to be unfair only because of a disparity between the way in which he was treated compared to his colleague Mr A.

Appeal
The company then successfully appealed the Tribunal decision and the dismissal was found to be fair. The EAT held that the Tribunal had not properly applied guidance from the applicable case law, Hadjioannou v Coral Casinos Ltd [1981] IRLR 352. This case underlines that an employer’s previous decisions not to dismiss employees for the same misconduct will only make a dismissal unfair in two types of case:
– where the employer has previously treated similar behaviour less seriously, so that employees have been led to believe that certain categories of conduct will be overlooked or will not lead to dismissal or it can be inferred that the employer’s asserted reason for dismissal was not the real reason;
– where employees in “truly parallel circumstances” arising from the same incident are treated differently.

Conclusion
The case applies settled law but serves as a useful reminder of the need for HR practitioners and employers on two counts:
• When making decisions to dismiss, keep a clear focus on the statutory test to be applied;
• There are occasions when disparity of treatment should be considered but rarely are circumstances “truly parallel”. In the present case the Tribunal did not expressly draw a distinction between a deliberate punch in the face at what was designated to be a workplace and a threat afterwards that was never carried out. In the EAT’s view, if the Tribunal had, it would have been bound to conclude the circumstances were not the same.
(MBNA Ltd v Jones [2015] UK EAT/0120/15)
For employment queries please contact Michelle Chamberlain on 01905 677041 or mchamberlain@thursfields.co.uk

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