Unfair Dismissal

In a recent Employment Appeal Tribunal decision, MBNA Limited v Jones it was held that an employer who found two employees guilty of misconduct for their involvement in the same incident, was entitled to dismiss one and not the other. 

The case concerned an allegation of misconduct.  In accordance with Section 98 (2) (b) of the Employment Rights Act 1996 (ERA), misconduct is a potentially fair reason for dismissal.  Once an employer has shown a reason for dismissal, the Employment Tribunal must decide whether dismissal for that reason is fair.  The general test of fairness is set out in Section 98 (4) Employment Rights Act 1996 where the employer has shown the reason for dismissal, the Tribunal must then decide whether the employer acted reasonably in treating it as a sufficient reason for dismissal.  This will depend upon the circumstances (including the size and administrative resources of the employer's undertaking) and shall be determined in accordance with the equity and substantial merits of the case.

In a case where an employee is dismissed because the employer suspects or believes that he or she has committed an act of misconduct, in determining whether the dismissal is unfair an Employment Tribunal has to decide whether the employer who discharged the employee on the grounds of misconduct in question entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time.  This involves three elements, first it must be established by the employer the fact of that belief, second it must be shown that the employer had in his mind reasonable grounds upon which to sustain the belief and finally, the employer, must have carried out as much investigation into the matter as was reasonable in all the circumstances of the case.  This is the test laid down in the lead EAT decision of British Home Stores Limited v Burchell.  Having established the Burchell test the decision must then fall within the range of reasonable responses open to a reasonable employer in those circumstances and in the context of that business.

There are a number of earlier decisions which deal with issues in relation to consistency of treatment which are of course relevant to the circumstances of this particular case.  In the case of Hadjioannou v Coral Casino's Limited, the EAT held an employer's decision to dismiss may be unfair where the employer had previously treated similar behaviour less seriously or where employees in truly parallel circumstances arising from the same incident are treated differently.  In this case however, the EAT stressed that it is of the highest importance that flexibility should be retained and employers and Tribunals should not be encouraged to think that a tariff approach to misconduct is appropriate. 

Here the employer had organised a work event to a race course.  Staff had been advised that normal standards of behaviour and conduct were expected. 

J and B were employees and attended the event as did B's sister.  Both J and B drank alcohol before and at the event.  J put his arm around B's sister.  B kneed J in the leg.  J responded by punching B in the face.  J left the event and went to a club.  He waited outside and sent seven threatening texts to J but no further incident took place. 

The employer dismissed J but gave B a final written warning. 

The employer accepted that B had not kneed J with force or aggression and this was not sufficient provocation for J to punch B. 

Whilst B's text messages had been violent the employer had concluded that they had been an immediate response to being punched.

The Employment Tribunal held that J's dismissal was unfair.  That the employer, M had considered provocation differently in each case and the decision to dismiss J and not B was unreasonable.  The employer appealed. 

The Employment Appeals Tribunal allowed the appeal and considered what is termed as the disparate treatment of employees.  The EAT determined that the Tribunal must apply the test in Section 98 (4) of the Employment Rights Act as stated above.  Here the Tribunal had erred by focusing on how the employer had treated B rather than considering whether the employer had reached reasonable conclusions and applied a reasonable sanction in J's case.  If it was reasonable for the employer to dismiss J, the fact that the employer had been lenient towards B was irrelevant.  The EAT concluded that where circumstances are truly parallel it might, but would not always, be unreasonable for employees to be treated differently.  The Tribunal had not considered whether the circumstances of J and B were sufficiently similar to be considered truly parallel.  If the Tribunal had done it would have had to conclude that they were not.  J had punched B at an event where he knew the employer's disciplinary rules would apply.  B's texts were threatening and unacceptable but the threats had not been carried out.  Provocation was a matter for the employer to consider in mitigation in the circumstances of each case. 

In conclusion therefore, each case should be assessed on its merits.  Employers should be advised to look very carefully at the circumstances relating to each individual even where they are involved in the same incident.

Posted on: 11/01/2016

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.

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