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Does disparity of treatment render a dismissal unfair?
11 November 2015

An Employment Tribunal recently found an employer to have unfairly dismissed an employee who was treated differently to a colleague involved in the same misconduct investigation.

On appeal however, the Employment Appeal Tribunal found that the employer was entitled to treat the employees differently and overturned the finding of unfair dismissal.

Facts

The claimant was employed by the Respondent bank as a Collections Officer. The respondent held an event at Chester Racecourse to celebrate its 20th anniversary, informing staff beforehand that it was a work event and that normal standards of behaviour and conduct would apply. Any misbehaviour would be subject to the respondent’s disciplinary procedures and guidelines.

The claimant and another employee, Mr. Battersby, had been drinking before the event. During the event, Mr. Battersby kneed the claimant in the back of the leg, and the claimant licked Mr. Battersby’s face. Witnesses at the event had not considered this anything beyond usual ‘banter’.

The claimant’s sister was also attending the event. Mr. Battersby, whilst he had his arm around the claimant’s sister once again kneed the claimant in the back of the leg. The claimant then punched Mr. Battersby in the face.

Later in the evening, the claimant went to a nightclub with others, and Mr. Battersby waited outside the venue sending threatening messages such as “I’m going to rip your f**king head off”. Mr. Battersby however never carried out any of the threats and the claimant didn’t actually receive the messages until the next day.

The respondent carried out a disciplinary investigation and brought charges against both employees. The claimant was dismissed for gross misconduct, whilst Mr. Battersby was issued with a final written warning. The claimant unsuccessfully appealed.

The claimant brought a claim for unfair dismissal because of the inconsistency in treatment between himself and Mr. Battersby.

Decision

At first instance the Employment Tribunal found that the claimant had been unfairly dismissed, as he had been treated differently to Mr. Battersby despite both being guilty of acts of gross misconduct.

However, on appeal, the EAT found that the dismissal had been fair. The ET had failed to properly apply the guidelines in Hadjioannou v Coral Casinos Limited where it was held that only in ‘truly parallel circumstances’ would it be unfair to give employees different treatment. There was clear disparity between a punch to the face at a workplace event, and threatening messages sent afterwards.

The ET Judge had also failed to properly apply the statutory test for unfair dismissal. The question before the Judge was not whether the employer had acted reasonably or leniently in Mr. Battersby’s case, but whether the decision to dismiss the Claimant fell within the employer’s band of reasonable responses. The EAT held that it did.

Conclusion

Dismissing an employee/s and awarding a lesser punishment to their colleague will not therefore necessarily render the dismissal unfair. As always, the key point to remember is whether the decision to dismiss each individual employee falls within the employer’s band of reasonable responses, regardless of whether or not the same outcome is relevant for another employee. Only in truly parallel circumstances should the disparity of treatment amongst employees be taken into account in alleged claims of unfair dismissal, and so employers should not feel inclined to penalise employees to the same degree unless the circumstances are such that they absolutely must.

As the festive season approaches, this case also acts as a good reminder to ensure that employees are aware of the standards of behaviour expected at workplace events and parties.

For more information about how the disparity of treatment can effect a dismissal or to find out more about how the Employment team can help you please email [email protected] or phone 0118 959 7711.

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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