Consistency in cases of misconduct – A timely reminder for Christmas events

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Posted in:HR and Employment|November 26, 2015 | Join the mailing list

Mr Jones was employed by MBNA Ltd ("MBNA") from February 2006 to 19 December 2013, when he was dismissed.

On 8 November 2013 MBNA held an event at Chester race course to celebrate the company’s 20th anniversary. As this was a work event, staff were told that normal standards of behaviour and conduct were to be expected.

During the event, Mr Jones had an altercation with a colleague, Mr Battersby. Both were drinking and appeared to other colleagues to be enjoying some light hearted banter. However, later that evening events took a different
turn and Mr Jones punched Mr Battersby in the face at the event.

After leaving Chester race course, Mr Battersby sent Mr Jones seven text messages threatening serious physical violence. These were not seen by Mr Jones until the following morning. Significantly, Mr Battersby’s threats of
violence were never carried out.

MBNA began disciplinary proceedings against both employees. Mr Jones was subsequently dismissed for gross misconduct on the basis that he ‘started’ the altercation with Mr Battersby and for acting inappropriately at an MBNA
branded event, which could have impaired the reputation of the company.

Mr Battersby was issued with a final written warning.

Following his termination, Mr Jones claimed unfair dismissal against MBNA. The Employment Judge agreed with Mr Jones because of the inconsistency with the sanction imposed on Mr Battersby.  MBNA appealed the decision.

The Employment Appeal Tribunal (EAT) decided in favour of MBNA.  The EAT stated the Tribunal had not expressly addressed the question of whether the circumstances between Mr Jones and Mr Battersby were sufficiently similar
to be considered ‘truly parallel’, and if it had expressly addressed this question, it would have recognised key differences between the two cases. In failing to consider this, the tribunal had not followed the guidance in the case of
Hadjiouannu v Coral Casinos Ltd.

The EAT also criticised the Tribunal’s reliance on the ‘defence of provocation’, providing that ‘Provocation is not a defence to assault in either civil or criminal law.’
So, although provocation may be a mitigating factor for an employer to consider, it is not a defence.


What Berg says about the decision

There are a number of factors which should be reiterated here.

1.    The expected behaviour at work events must always be clearly explained to employees prior to the event, especially where alcohol is involved. This should also be reflected in the employer’s disciplinary

2.    Secondly, employers do have some flexibility when it comes to disciplining employees for relatively similar acts of misconduct. It would have been disproportionate for an actual punch in the face to be
considered in the same way as a mere threat of violence which was never actually followed through.

3.    Thirdly, ‘truly parallel’ circumstances are rare and as such, disciplinary sanctions can be different when considering two employees that have behaved in a similar (but not identical) way, as long as the
reasoning behind such decisions can be explained.

4.    Finally, this case is a timely reminder for those businesses organising and attending work events in the run up to Christmas. For more information, please see our blog post “The 12 days of Christmas” coming



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