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A difference of opinion

The EAT has recently dealt with the question: does inconsistent disciplinary treatment make a dismissal unfair?

The Facts

The case involved two employees who were attending a corporate event in a business capacity. Both individuals were reminded by their employer that the normal standards of behaviour would apply regardless of the social nature of the event and the location.

However, both employees began drinking and subsequently fell out. Mr Jones punched Mr Battersby in the face and then later, after the event, Mr Battersby sent a number of threatening texts to Mr Jones.

Following an investigation both men faced disciplinary allegations resulting in Mr Jones being dismissed and Mr Battersby receiving a final written warning.

The Finding

The Tribunal hearing Mr Jones’ unfair dismissal claim concluded the dismissal had been unfair because of the difference in treatment of the two employees involved in the same incident.

However, on appeal it was held that the decision to dismiss Mr Jones was not unfair. There are a range of reasonable actions an employer can take in relation to misconduct. The EAT drew a distinction between Mr Jones’ aggressive behaviour effectively assaulting a colleague in the workplace, and Mr Battersby’s threats that were never carried out. The circumstances were not “truly parallel” to require consistency of treatment and the employer had been entitled to apply different sanctions. Had Mr Battersby followed through on any of his threats this conclusion could have been very different.

This case acts as a reminder to employers that while each disciplinary matter will be fact-sensitive, it is important to have in mind previous outcomes in the same or similar circumstances. It is best practice to act consistently as far as possible to minimise the risk of a claim, but where there are differences, an employer may apply a different sanction. This will often only be advisable where a careful consideration of the facts has been undertaken and further advice is likely to be required.

If you’re dealing with a difficult disciplinary matter please do not hesitate to contact us on 0191 282 2880 for a no obligation chat, or email us if you require further advice.


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