When is it appropriate to consider disparity of treatment between employees in similar circumstances?

The EAT has held that an employment tribunal was wrong to find that a claimant was unfairly dismissed where the employer treated another employee involved in the incident more leniently.  

Mr Jones was employed by MBNA Limited from February 2006 until December 2013. In November 2013, MBNA held an event at Chester Racecourse and confirmed to staff that it was a work event, and that normal standards of behaviour and conduct would apply. Any misbehaviour would be subject to MBNA’s procedures and guidelines.

Mr Jones attended the event along with another employee, Mr Battersby and Mr Battersby’s sister. Both Mr Jones and Mr Battersby drank alcohol before, and during the event. At one stage in the evening, Mr Jones had his arm around Mr Battersby’s sister which seemingly led to Mr Battersby to knee Mr Jones in the leg. Mr Jones retaliated by punching Mr Battersby in the face.

Mr Jones subsequently left the event and went to a club. While at the club, Mr Battersby was waiting outside and sent Mr Jones 7 texts threatening him with physical violence. However Mr Battersby did not carry out his threats.

After an investigation and disciplinary hearings, Mr Jones was dismissed. MBNA accepted that Mr Battersby kneed him, but said that this was not done with any force or aggression. It was not “substantive provocation” for Mr Jones punching him. Mr Battersby, on the other hand, was given a final written warning for sending texts of an “extremely violent” nature but he was not dismissed on the basis that MBNA found that they were made as an immediate response to Mr Jones punching him. Mr Jones brought a claim for unfair dismissal.

The tribunal found that the difference in sanction was unreasonable and these differences rendered the dismissal unfair.

The EAT held that the tribunal had wrongly focussed on how Mr Battersby was dealt with, when it should have been considering whether MBNA reached reasonable conclusions and applied a reasonable sanction in Mr Jones’s case. If it is reasonable for the employer to dismiss the employee, then the mere fact that the employer was unduly lenient to another employee was irrelevant.

There may be occasions when arguments about disparity must be considered, but a tribunal must be very careful in doing so. In cases where employers treat employees in “truly parallel circumstances” arising from the same incident differently, it may be unreasonable and potentially lead to unfair dismissal but not always. There will only be a few cases where circumstances are sufficiently parallel to result in unfair dismissal.

The tribunal did not expressly address the question of whether the circumstances between Mr Jones and Mr Battersby were sufficiently similar to be considered as “truly parallel”. If it had, the EAT said that it would have been bound to conclude that they were not. Mr Jones punched Mr Battersby during an event in respect of which he was expressly told that MBNA’s disciplinary rules would apply. Mr Battersby on the other hand sent texts threatening violence. While these were reprehensible, he did not in fact carry out his threat in the workplace or anywhere.

If you have any questions on the content of this article or any other HR/ employment law matter, please do not hesitate to contact our HR/employment solicitor Claire Berry on 01480 442040 or email: claire.berry@leedsday.co.uk 


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