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Employment law for employers

Unfair dismissal: where two employees are involved in an incident do you have to treat them the same?



The Respondent employed the claimant as a collections officer from 27 February 2006 until his dismissal on 19 December 2013.

On 8 November 2013 the Respondent held an event at Chester Racecourse to celebrate its 20th anniversary. Staff were told that this was a work event and that normal standards of behaviour and conduct would apply. Any misbehaviour would be subject to the Respondent’s procedures and guidelines. Among the employees who attended were the Claimant (Mr Jones), Mr Battersby, and Mr Battersby’s sister.

Although the event formally began at 7 pm it was admitted that both Mr Jones and Mr Battersby had started drinking earlier. Mr Battersby had commenced drinking about midday and the claimant at 5pm. Mr Jones and Mr Battersby were known to each other.

It was determined that there was some form of incident between them during the event. Mr Jones licked Mr Battersby’s face, Mr Battersby kneed the claimant in the back of his leg. Later in the evening Mr Jones had his arms around Mr Battersby’s sister and Mr Battersby came over and kneed him in his leg again. Mr Jones then punched Mr Battersby in the face.

Following the celebration at the racecourse Mr Jones and others went to a local nightclub. Mr Battersby knew that the claimant was there and waited outside. He texted the claimant seven times in all, threatening to rip his f*****g head off. He also threatened the claimant with going back to where he stayed and ripping his head off. There was, however, no further incident between Mr Jones and Mr Battersby, who never carried out these threats. Mr Jones did not in fact receive the texts until the following morning. The respondent investigated matters and brought charges against both Mr Jones and Mr Battersby. Mr Jones was charged with, among other things, punching Mr Battersby, a behaviour which had the potential of seriously damaging the bank’s reputation. In his defence, Mr Jones said that he had been kneed by Mr Battersby and had lashed out in self-defence.

After investigating matters, the respondent found that Mr Jones was to be dismissed on the grounds of gross misconduct. It was noted that Mr Jones was guilty of gross misconduct on the grounds that he had punched Mr Battersby.

Mr Battersby was issued with a final written warning as it is not believed that he had any intent to follow through on the contents of his text messages. Mr Jones appealed the decision to dismiss him but this was not successful.

Accordingly, he brought proceedings to an Employment Tribunal.

The Employment Tribunal Proceedings

At the Employment Tribunal it was determined that the dismissal was unfair. The tribunal found that a reasonable employer would be entitled to find that in the circumstances that the claimant was not provoked beyond reasonable measure. The Judge determined that there was an unreasonable disparity of treatment between the claimant and Mr Battersby. Accordingly, the decision to dismiss was unfair.

The matter was appealed to the Employment Appeal Tribunal (EAT).

At the EAT the respondent’s appeal was upheld and a finding of a fair dismissal was substituted. It was found that the employment Judge at the Employment Tribunal had erred by not following an appropriate test set down in case law and departed from the statutory test of reasonableness as required by the Employment Rights Act 1996. If he had followed the appropriate test he would have recognised key differences between the two cases for the purposes of an argument that there had been a difference in treatment, i.e. a deliberate punch in the face at what was designated to be a workplace event and a threat made afterwards which was not carried through.


Where more than one employee is involved in a case of related misconduct it can sometimes be argued that there has been a difference in the disciplinary sanctions applied. The same disparity argument had been raised by employees pointing back to how incidents had been dealt with in the past.

This case was an important reminder for employers that in determining the fairness of the dismissal where inconsistent treatment is claimed, it is necessary to decide whether the facts are truly comparable. For two separate incidents of misconduct to be exactly the same and in deciding whether they are like for like, the factors include the nature and degree of misconduct, any mitigating circumstances and each employee’s attitude.

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Call us for free on 0330 159 5555 or complete our online form below to submit your enquiry or arrange a call back.