No disparate treatment in dismissal when circumstances are not sufficiently similar.

In MBNA Ltd v Jones, the EAT has overturned a tribunal’s finding of unfair dismissal on the basis of inconsistent treatment. The tribunal had not been entitled to find that there was an unreasonable disparity of treatment between an employee who was dismissed for punching a colleague at work event and the colleague who was given a final written warning for sending threatening texts to that employee after the work event had finished.

J was employed by MBNA Ltd, a bank, as a collections officer. On 8 November 2013, MBNA Ltd held an event at Chester Racecourse to celebrate its 20th anniversary. Staff were told that it was a work event and that normal procedures and guidelines with regard to conduct would apply. At the event, there were some incidents between J and a colleague, B, which onlookers described as ‘fun/banter’ but which culminated in J punching B in the face. After J had left the work event, B texted him seven times, threatening serious violence. However, there was no further incident between them. MBNA Ltd investigated the incidents and the same person, H, undertook disciplinary hearings in both J’s and B’s cases. He found that there had been no substantive provocation before J punched B and that the incident risked reputational damage to the company. H concluded that J should be dismissed for gross misconduct. As for B, H found that the text messages were of an extremely violent nature but that they were sent as an immediate response to J hitting B. Although he considered that this also amounted to gross misconduct, the appropriate penalty was a final written warning. J claimed unfair dismissal.

A tribunal upheld J’s claim. It reasoned that, had both J and B been dismissed for what were proven (and unarguable) acts of gross misconduct, then both dismissals would have been fair. However, it considered that there was an unreasonable inconsistency in treatment between J and B. In particular, the tribunal considered that H had not been entitled to conclude that the text messages sent by B were in ‘immediate response’ to J punching him; and that the ‘defence of provocation’ was applied differently to B. There was thus a disparity of treatment which rendered J’s dismissal unfair. MBNA Ltd appealed to the EAT.

The EAT allowed the appeal. It pointed out that, when considering a claim of unfair dismissal based on disparity, the tribunal must focus on the treatment of the employee bringing a claim – if it was reasonable for the employer to dismiss this employee, the mere fact that the employer was unduly lenient to another employee is neither here nor there. Following Hadjioannou v Coral Casinos Ltd 1981 IRLR 352, EAT, an employer’s decision made in a truly parallel case may support the argument that it was not reasonable to dismiss the employee, but it will be rare for the facts to be sufficiently similar. Here, the tribunal had erred by considering whether MBNA Ltd was unreasonably lenient in B’s case – it should have focused on its treatment of J. It also erred in finding that the ‘defence of provocation’ was applied inconsistently. The tribunal had apparently concluded that MBNA Ltd made different decisions in indistinguishable circumstances but this was not the correct legal test. The tribunal had permissibly found that J’s misconduct was sufficient to warrant dismissal. Applying the Hadjioannou test, it would have been perverse for it to treat a deliberate punch in the face at a work event as sufficiently similar to threats made by text thereafter. There was therefore no question of disparate treatment and so the conclusion had to be that the dismissal was fair. A finding of fair dismissal would therefore be substituted for the tribunal’s decision.

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