Dismissal and consistency of sanctions

A recent Employment Appeal Tribunal has shown how consistency of disciplinary sanctions is important, but that different sanctions do not always make dismissal unfair. Phil Allen reports.

When considering the fairness of a dismissal for misconduct, one thing an Employment Tribunal will take into account is inconsistency. If your organisation has not dismissed someone else for the same thing, that alone can render a dismissal unfair. However, in a judgment which provides some reassurance for employers, the Employment Appeal Tribunal in MBNA Ltd v Jones has emphasised that when a Tribunal considers an argument that disparity of sanction should make a dismissal unfair, it must scrutinise the arguments carefully and decide if the dismissal in the particular case falls within the range of reasonable responses.

The facts

Mr Jones and Mr B attended an event arranged by their employer at Chester racecourse to celebrate the organisation’s 20th anniversary. The two had been drinking prior to the start of the event. Various incidents occurred including Mr Jones putting his arms around Mr B’s sister and Mr B kneeing him in the leg. These culminated in Mr Jones punching Mr B in the face. Later, Mr B texted Mr Jones (whilst he was in a club) with several reprehensible texts containing expletives and, in some, threatening to rip his head off.

Unsurprisingly both employees were required to attend disciplinary hearings after the event. Mr Jones was dismissed for hitting Mr B at the clearly employer-branded and organised social event. Perhaps surprisingly however, Mr B was not dismissed but given a final written warning.

When Mr Jones claimed unfair dismissal he initially succeeded, due to the inconsistent treatment. Whilst finding his dismissal was unfair, the Employment Judge said that if both Mr Jones and Mr B had been dismissed both dismissals would have been fair, as these were proven and unarguably acts of gross misconduct. The Employment Appeal Tribunal has however held that the dismissal was fair. In its judgment it emphasises that the two faced different misconduct findings: one deliberately punching someone in the face at what was designated to be a workplace; and the other making threats. It held that the fact that a manager may have been lenient in the sanction he imposed in one case, does not render his decision to dismiss unfair when the employee was dismissed for something else (for which dismissal was so clearly within the range of reasonable responses).

What does this mean for me?

Employment Tribunals expect employers to show consistency in disciplinary decisions. You should ensure that like cases are usually treated with the same sanction, or that any differences are considered and explained. It is certainly cautionary that the initial Tribunal in this case found unfairness in dismissing for something as serious as punching a colleague, due to inconsistency. However the EAT Judgment is reassuring. When you are faced with different disciplinary allegations you don’t always need to reach the same decision or outcome, even if those allegations arise from the same event. The fact that a lenient manager does not dismiss in one case, does not mean you cannot fairly dismiss another employee provided you can distinguish between the cases and the difference in sanction.

Comment

As this case proves, work-related events involving alcohol can be fraught with difficulties for HR professionals. In its judgment, the EAT does recount that this employer had told staff prior to the event that it was a work event and normal standards of behaviour and conduct would apply (with misbehaviour being dealt with under the company’s procedures). That is a good idea and certainly helped this employer. If you are faced with misconduct at such events, do consider carefully what is being alleged that each person has done and, if different sanctions are given to different employees, do carefully consider what it is that distinguishes between the disciplinary cases being decided.

Phil Allen is a partner at Weightmans. He can be contacted on 0161 214 0504 or This email address is being protected from spambots. You need JavaScript enabled to view it..