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 No unfairness where one employee treated differently to another

No unfairness where one employee treated differently to another

The Claimant, Mr Jones, was employed by MBNA Limited as a Collections Officer. In November 2013, the Bank held an event at Chester Racecourse. Staff were told it was a work event and any misbehaviour would be subject to the Bank’s disciplinary procedure and guidelines. Among the employees who attended were Mr Jones, Mr Battersby and Mr Battersby’s sister.

Both Mr Jones and Mr Battersby had been drinking prior to the event. According to witnesses, there was some “banter” between the two which included Mr Battersby kneeing Mr Jones in the back of his leg and Mr Jones licking Mr Battersby’s face. Later in the evening, Mr Jones had his arm around Mr Battersby’s sister. Mr Battersby came over. He kneed Mr Jones in his leg again. Mr Jones punched Mr Battersby in the face.

Mr Jones and some others left the celebration and went on to a club. Mr Battersby knew Mr Jones was there and waited outside. He texted Mr Jones seven times in all, threatening to “rip your f***ing head off”. He invited, in less than polite terms, for Mr Jones to leave. He said he would follow him back to where he was staying and “rip your f***ing bastard head off.” There was, however, no further incident between Mr Jones and Mr Battersby; Mr Battersby never carried out his threats.

Disciplinary hearings were held in relation to both Mr Battersby and Mr Jones. Mr Horsefield, the decision-maker, found that Mr Battersby didn’t intend to follow through with the text message threats he made: they were an immediate response to Mr Jones’ punch. He also held that when Mr Battersby kneed Mr Jones it was not done with any aggression or force. Consequently Mr Horsefield found that Mr Battersby should be issued with a final written warning.

In contrast, Mr Horsefield felt that Mr Jones should be dismissed. In that case, he found that there was no provocation prior to Mr Jones punching Mr Battersby and that his actions could have impacted the reputation of MBNA.

The Employment Judge felt that if both men had been dismissed for gross misconduct then both dismissals would have been fair. However, the Judge felt that there was an unreasonable disparity of treatment between Mr Jones and Mr Battersby and therefore Mr Jones’ dismissal was unfair.

The EAT disagreed. There was a significant disparity between the cases. The question for the Employment Judge was not whether MBNA was unreasonably lenient or reached unreasonable conclusions in Mr Battersby’s case. The question was whether it reached reasonable conclusions and applied a reasonable sanction in Mr Jones’ case. As the Tribunal had found that the dismissal was in itself fair this was the appropriate conclusion.

Where there are truly similar cases and there is a different treatment this can be sufficient to support an argument that the treatment was unreasonable in a particular case. However, there are not many cases in which circumstances are truly similar and the EAT was clear that this case was not one of them.