Unfair dismissal and allegations of inconsistent treatment

Many individuals will regard inconsistent treatment in a disciplinary or dismissal process as giving rise to unfairness.

We have written on this topic before, but a recent decision of the Employment Appeals Tribunal (EAT) indicates that allegations of inconsistent treatment can cause employers (and Employment Tribunals) problems in deciding if a particular dismissal was unfair or not.  

The case of MBNA Limited v Jones concerned two employees that were both at a corporate social event. They had been told in advance that the normal standards of behaviour were expected . Unfortunately the two of them began drinking, and had a fall out. Mr Jones then punched the other man. Later that evening the other man sent texts to Mr Jones in which he stated that he would "rip your f*ing head off". The threats of violence from that individual were not carried out.

Disciplinary charges were brought against both men and an investigation was commenced. The result was that Mr Jones was dismissed, while the other man received a final written warning.

At the subsequent hearing in the Employment Tribunal the claim of unfair dismissal brought by Mr Jones was upheld, as the Tribunal noted that there had been inconsistent treatment of the two men.

MBNA appealed against the decision of the Tribunal. The EAT overturned the decision of the Tribunal. It noted that the test of reasonableness is assessed against  a "range of reasonable responses" and it concluded that the decision of the employer to dismiss Mr Jones fell within that range. It also noted that the Tribunal had failed to draw the distinction between an actual punch in the face and a threat which was never carried out.

This case illustrates the fact that fairness may dictate different outcomes for different employees depending on the precise details of the incident. Frequently individuals raise the argument of inconsistent treatment without fully taking account of differences between their own case and those of a colleague. Factors such as current disciplinary records, or different status within the business may well amount to good reasons for an employer to treat the two individuals differently.

While naturally an employer is expected to approach disciplinary action in a consistent manner, this case highlights the fact that employers should not feel totally  restrained from imposing different outcomes on different employees if there are genuine reasons for treating one more seriously than the other.

If you need further help on this area of law please do not hesitate to contact us at Hallett Employment Law Services Ltd.