The recent case of MBNA Ltd v Jones demonstrates that differential treatment of employees in misconduct situations will not necessarily amount to an unfair dismissal.
This case involved two employees, Mr Jones and Mr Battersby who attended a work social event at Chester Racecourse. They were both drinking, before and during the event, and were engaging in what witnesses called ‘fun’ and ‘banter’ which essentially involved Mr Battersby kneeing Mr Jones in the back of the leg and Mr Jones licking Mr Battersby’s face. Later in the evening Mr Jones had his arms around Mr Battersby’s sister (also an employee of MBNA) which resulted in Mr Battersby kneeing Mr Jones again and Mr Jones then punching Mr Battersby in the face. Mr Jones later went onto a club and Mr Battersby waited outside texting him messages with extreme threats of violence, stating that he would “rip your f*ing head off”. However, there was no further incident between them.
Once investigated, MBNA decided to dismiss Mr Jones but only gave Mr Battersby a final warning.
Mr Jones’ claim for unfair dismissal was upheld by the Tribunal on the basis of this inconsistent treatment, however, this was overturned on appeal. The Employment Appeal Judge said that such issues of disparity are relevant to assessing the reasonableness of the employer’s actions but that the circumstances being compared should be ‘truly parallel’. In this case, the Appeal Judge felt that a deliberate punch in the face at a work event was not truly parallel to the threatening text messages sent later (which were not acted upon) and as such the disparity in treatment did not render the dismissal unfair.
With Christmas party season approaching fast, this case is a reminder to employers to communicate to their employees the standards they expect at work social events and the potential consequences of inappropriate behaviour.