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Inconsistent disciplinary outcomes are not always unfair

It’s December, the office party season is underway and that can sometimes mean trouble for employers and employees. It can often be forgotten, amongst the festivities, that office functions will usually be an extension of the workplace and that normal standards of behaviour are to be observed. However, with the best of intentions, and particularly when alcohol is involved, standards can slip. So what happens when two employees misbehave at a work night out and an employer decides to dismiss only one of them?

In the recent case of MBNA Limited v Jones UKEAT/0120/15 the tribunal had to answer just this question. During the course of a work night out, Mr Jones punched his colleague, Mr Batersby, in the face after Mr Batersby had kneed him in the leg. Later in the evening Mr Jones attended a night club. Mr Batersby decided to wait outside and proceeded to send Mr Jones a number of text messages threatening physical violence.

Following the incident, both employees were found guilty of gross misconduct and Mr Jones was dismissed but Mr Batersby was not. The employment tribunal found that the decision to apply disparate treatment was unreasonable and decided that Mr Jones had been unfairly dismissed.

The Employment Appeal Tribunal disagreed. It commented that the reasonableness of the decision should not be overlooked simply because one employee was treated more leniently. In the circumstances, it was reasonable to dismiss Mr Jones for gross misconduct.

Disparity of treatment will occasionally be relevant to reasonableness, but the circumstances need to be “truly parallel”. They were not truly parallel in this case.

When organising office parties or workplace events, remember to advise employees that normal standards of behaviour are expected and that they may be subject to disciplinary procedures should their behaviour be deemed unacceptable.

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