In a recent Employment AppealTribunal decision, MBNA Limited v Jones it was held thatan employer who found two employees guilty of misconduct for theirinvolvement in the same incident, was entitled to dismiss one andnot the other.
The case concerned anallegation of misconduct. In accordance with Section 98 (2)(b) of the Employment Rights Act 1996 (ERA), misconduct is apotentially fair reason for dismissal. Once an employer hasshown a reason for dismissal, the Employment Tribunal must decidewhether dismissal for that reason is fair. The general testof fairness is set out in Section 98 (4) Employment Rights Act 1996where the employer has shown the reason for dismissal, the Tribunalmust then decide whether the employer acted reasonably in treatingit as a sufficient reason for dismissal. This will dependupon the circumstances (including the size and administrativeresources of the employer's undertaking) and shall be determined inaccordance with the equity and substantial merits of thecase.
In a case where an employee isdismissed because the employer suspects or believes that he or shehas committed an act of misconduct, in determining whether thedismissal is unfair an Employment Tribunal has to decide whetherthe employer who discharged the employee on the grounds ofmisconduct in question entertained a reasonable suspicion amountingto a belief in the guilt of the employee of that misconduct at thattime. This involves three elements, first it must beestablished by the employer the fact of that belief, second it mustbe shown that the employer had in his mind reasonable grounds uponwhich to sustain the belief and finally, the employer, must havecarried out as much investigation into the matter as was reasonablein all the circumstances of the case. This is the test laiddown in the lead EAT decision of British Home Stores Limited vBurchell. Having established the Burchell test thedecision must then fall within the range of reasonable responsesopen to a reasonable employer in those circumstances and in thecontext of that business.
There are a number of earlierdecisions which deal with issues in relation to consistency oftreatment which are of course relevant to the circumstances of thisparticular case. In the case of Hadjioannou v CoralCasino's Limited, the EAT held an employer's decision todismiss may be unfair where the employer had previously treatedsimilar behaviour less seriously or where employees in trulyparallel circumstances arising from the same incident are treateddifferently. In this case however, the EAT stressed that itis of the highest importance that flexibility should be retainedand employers and Tribunals should not be encouraged to think thata tariff approach to misconduct is appropriate.
Here the employer hadorganised a work event to a race course. Staff had beenadvised that normal standards of behaviour and conduct wereexpected.
J and B were employees andattended the event as did B's sister. Both J and B drankalcohol before and at the event. J put his arm around B'ssister. B kneed J in the leg. J responded by punching Bin the face. J left the event and went to a club. Hewaited outside and sent seven threatening texts to J but no furtherincident took place.
The employer dismissed J butgave B a final written warning.
The employer accepted that Bhad not kneed J with force or aggression and this was notsufficient provocation for J to punch B.
Whilst B's text messages hadbeen violent the employer had concluded that they had been animmediate response to being punched.
The Employment Tribunal heldthat J's dismissal was unfair. That the employer, M hadconsidered provocation differently in each case and the decision todismiss J and not B was unreasonable. The employerappealed.
The Employment AppealsTribunal allowed the appeal and considered what is termed as thedisparate treatment of employees. The EAT determined that theTribunal must apply the test in Section 98 (4) of the EmploymentRights Act as stated above. Here the Tribunal had erred byfocusing on how the employer had treated B rather than consideringwhether the employer had reached reasonable conclusions and applieda reasonable sanction in J's case. If it was reasonable forthe employer to dismiss J, the fact that the employer had beenlenient towards B was irrelevant. The EAT concluded thatwhere circumstances are truly parallel it might, but would notalways, be unreasonable for employees to be treateddifferently. The Tribunal had not considered whether thecircumstances of J and B were sufficiently similar to be consideredtruly parallel. If the Tribunal had done it would have had toconclude that they were not. J had punched B at an eventwhere he knew the employer's disciplinary rules would apply. B's texts were threatening and unacceptable but the threats had notbeen carried out. Provocation was a matter for the employerto consider in mitigation in the circumstances of eachcase.
In conclusion therefore, eachcase should be assessed on its merits. Employers should beadvised to look very carefully at the circumstances relating toeach individual even where they are involved in the sameincident.
This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.