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HR / Employment Law – Updates and News – Week 49 – 2015

HR / Employment Law – Updates and NewsA round up of the latest HR and Employment Law updates and related stories.

DISCIPLINARY PROCEEDINGS – TREATING EMPLOYEES INCONSISTENTLY?

The recent case of MBNA Ltd v Jones UKEAT/0120/15/MC shows whilst employers need to bear in mind that dismissal must be fair, they must also carefully consider the circumstances leading to an individual employee’s disciplinary proceedings as this provides leeway to the sanctions which can be imposed.

In this case the employers hosted a celebration evening to mark their 20th anniversary, making it clear to employees that “it was a work event and normal standards of behaviour and conduct would apply” and any issues would be subject to their disciplinary procedures and guidelines.

Mr Jones, his colleague Mr Battersby, and Mr Battersby’s sister all attended the evening event but had actually started drinking much earlier in the day. During the event, Mr Jones and Mr Battersby engaged in what their colleagues referred to as “fun/banter” when “Mr Battersby kneed Mr Jones’ leg and Mr Jones licked Mr Battersby’s face.”

However, later in the evening, Mr Jones had his arms around Mr Battersby’s sister and after Mr Battersby again kneed Mr Jones in his leg, Mr Jones punched Mr Battersby in the face. Following the event Mr Battersby left a number of threatening telephone messages for Mr Jones which Mr Jones did not receive immediately. Mr Battersby did not carry out the threats and there were no further incidents between them. However the employers started disciplinary proceedings against both employees.

During the disciplinary proceedings the employers concluded that:-

  • Mr Jones punched Mr Battersby without any “substantive provocation” and his conduct could have impacted upon the employer’s reputation
  • Mr Battersby left threatening messages for Mr Jones as an immediate reaction to being punched

These proceedings culminated in Mr Battersby getting a written warning and Mr Jones being dismissed. Mr Jones appealed to the Employment Tribunal on the basis that his dismissal was unfair compared to the outcome in relation to Mr Battersby.

The Employment Tribunal agreed that Mr Jones’ dismissal was unfair because the sanction imposed on the two employees was inconsistent. The judge felt that had both employees been dismissed for gross misconduct then both dismissals would have been fair.

The employers then appealed to the Employment Appeals Tribunal (EAT) arguing that the Employment Tribunal judge had failed to take into account an earlier case (Hadjioannou v Coral Casinos Limited) which referred to taking into account differences in individual employee’s conduct. They stressed the differences in the conduct of Mr Jones and Mr Battersby based on the fact that Mr Jones had punched his colleague. 

The EAT agreed – employers should consider the circumstances of each individual employee’s case and so (based on the earlier case) were right to question whether they were “sufficiently similar” to consider them “parallel circumstances.” The EAT agreed that Mr Jones had not been not provoked “beyond reasonable measure” and held that his dismissal was therefore fair.

Rules for Employer to apply to disciplinary matters

This case emphasises that in disciplinary proceedings it will be difficult for any employee to challenge the fairness of decisions when an employer has

  • reached a reasonable conclusion and
  • applied a reasonable sanction which is
  • based on circumstances relating to the individual employee and
  • provided clear reasons for the sanctions imposed

Provided that an employer has done this, even where two employees are accused of the same or similar misconduct with different sanctions, it will not mean that either sanction is unfair:

  • unless the conduct is “parallel” (really similar) or
  • no other “reasonable” employer would reach the same decisions.

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