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Clive Dobbin | 11th November 2015

The consistency argument in unfair dismissal claims


Clive Dobbin | 11th November 2015

The consistency argument in unfair dismissal claims

I read an interesting case this morning about the consistency of treatment in handling the unfair dismissal of employees.

In MBNA Limited v Jones, two employees were at a corporate social event to celebrate the businesses 20th anniversary. Staff were told this was a work event and that normal standards of behaviour would apply under their disciplinary procedure. They began drinking and fell out. Mr Jones punched Mr Battersby in the face. After the event, Mr Battersby texted Mr Jones on a seven occasions using threatening and violent language. He never carried out his threats. Disciplinary investigations were carried out against both of them and it was decided by MBNA that Mr Jones would be summarily dismissed but Mr Battersby was given a final written warning. Mr Jones appealed his dismissal but the sanction was upheld.

The Employment Tribunal held that Mr Jones had been unfairly dismissed because of the inconsistency of treatment between the two employees. However, on appeal, the EAT overturned this decision. The EAT based its decision on two important points:-

  1. The Employment Judge had not clearly drawn a distinction between a deliberate punch in the face at a work event and threats that were never carried out following the work event. It was considered that if he had, he would have been bound to conclude the circumstances were not the same. Guidance from the case of Hadjioannou v Coral Casinos Ltd should have been applied to make this distinction.
  2. The Employment Judge had not applied the section 98(4) test, which requires understanding that there may be a range of reasonable responses by which an employer may react to the circumstances, giving rise to the dismissal.

So, where does this leave us? It must firstly be pointed out that where businesses hold work-related social events, employees acceptable conduct at such events must be made clear to them and addressed within a disciplinary policy. Secondly, it is the decision of the disciplining officer, based on the reasonable band of responses and the ET cannot substitute its own view. As with every case, it is fact dependent as to what is reasonable and though consistency should be a theme that is considered, it may need to be departed from in certain cases.

In my view, the EAT came to the correct conclusion, that a distinction should be drawn in these circumstances to avoid a perverse outcome. Do you agree or disagree?

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