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Employment Law

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Veale Wasborough Vizards , 09 NOV 2015

Taking Sides - different treatment of two employees did not make dismissal unfair

Taking Sides - different treatment of two employees did not make dismissal unfair
Jessica Ryan
Solicitor, Veale Wasbrough Vizards

The Employment Appeal Tribunal (EAT) has decided that there was no disparity of treatment where one employee was dismissed and another was given a final written warning following a fight between them.

In the recent case of MBNA Ltd v Jones, the claimant (J) and his former colleague (B) both attended a social event held by their employer. All staff had been told that the usual standards of conduct would apply at the event. J and B had been drinking beforehand and were initially in good spirits. However, events escalated and J punched B in the face. B then sent J seven texts threatening serious violence.

MBNA Ltd disciplined both J and B, finding no substantive provocation before J punched B. J was dismissed for gross misconduct. B's texts where found to be extremely violent and an act of gross misconduct, but they were also viewed as an immediate response to being hit by J. B was therefore given a final written warning. J claimed unfair dismissal, citing disparity of treatment between himself and B. His claim was successful at Tribunal and MBNA Ltd appealed to the EAT.

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The EAT allowed the appeal, holding that if it was reasonable for an employee to be dismissed, undue leniency towards another employee is "neither here nor there" and would not affect the fairness of the employee's dismissal. Whilst the incident arose out of the same background facts (ie. the social event and altercation between J and B), the two conduct issues were separate in that J had punched a colleague whereas B had issued threats of violence that were not carried out. This was not enough to argue that the circumstances leading to the disciplinary were completely parallel.

Best practice

The case highlights the difficulties in claiming disparity of treatment. Strategically, claimants should focus on the reasonableness of their own treatment rather than any perceived unfair leniency shown towards a colleague.

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