MBNA Ltd v Jones (EAT)
The Employment Appeal Tribunal (EAT) has found a dismissal was fair even though another employee involved in the misconduct at a work event received a more lenient sanction. Key differences justified the disparity of treatment.
Background
In November 2013, MBNA celebrated its 20th anniversary by holding an event at Chester racecourse. Prior to the celebration, MBNA reminded its employees that it was a work event and that normal standards of behaviour and conduct would apply.
At the event two employees (Mr Jones and Mr Battersby) began drinking and fell out. Mr Jones punched a Mr Battersby in the face. In turn, later on, after the event when the party had moved on to a different venue, Mr Battersby texted Mr Jones on a number of occasions threatening, amongst other things, to "rip your f*cking head off". He never carried out his threats.
A disciplinary investigation ensued with charges brought against both. The outcome was that Mr Jones was dismissed for his behaviour but Mr Battersby was given a final written warning.
The disciplinary manager found Mr Battersby's actions did not justify dismissal because his texts, albeit wholly inappropriate, had been sent after the work event and as a direct response to being punched.
Mr Jones brought a claim for unfair dismissal in the employment tribunal.
Tribunal Decision
In the tribunal's view, both employees were guilty of misconduct and the penalty for both should have been dismissal. However, MBNA had not applied a consistent provocation test and the tribunal found that this led to an "unreasonable disparity of treatment" and made the dismissal unfair. MBNA appealed to the EAT.
EAT Decision
Usefully, the EAT firstly clarified the different roles of an employment tribunal and the EAT. The tribunal, in applying the law, must determine whether or not the employer's decision to dismiss fell within the band of reasonable responses (s.98(4) of the Employment Rights Act 1996). In contrast, the EAT's jurisdiction is limited to deciding questions of law and intervening only if there is an error of law.
Having established this point, the EAT found the tribunal had failed to apply the guidance set out in Hadjioannu v Coral Casinos Ltd. The tribunal should have considered whether or not there were any differences in the circumstances of the two employees to justify the disparity of treatment. It was apparent that there were key distinctions. Mr Jones had punched a colleague at a work event when he was aware that MBNA's normal conduct rules applied. Mr Battersby's text messages were "plainly reprehensible", but were sent after the work event and not received until the following day.
The EAT found that the tribunal had failed to keep s.98(4) in mind when it considered disparity of treatment. The tribunal had mistakenly focused on the issue of provocation. The question the tribunal should have asked was whether or not it was reasonable for the employer to dismiss the employee whose case it was considering. If it was reasonable to dismiss, "the mere fact that the employer was unduly lenient to another employee [was] neither here nor there".
The EAT allowed the appeal and substituted a finding that the dismissal was fair in all the circumstances.
Comment: Employers should generally always aim to show consistency in their disciplinary decisions i.e. that employees who commit similar acts of misconduct should receive a similar penalty. However, this case demonstrates that different sanctions may be applied IF there are key differences and the circumstances are not truly parallel.
This case is also a helpful reminder that you should make clear to staff before a work event that the normal workplace standards of conduct will apply. It certainly assisted MBNA in this case.
Given that Christmas parties will be in full swing from now until the New Year intoxicated employees may be problematic – it’s wise to set the expectations in advance so that you can then rely on the fact they knew about those expectations if/ when you have to follow your fair disciplinary procedure to deal with any event “fallout”. See our blog entry on Christmas parties for how to ensure it all goes according to plan…
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