Consistency of treatment in unfair dismissal

Both employees attended a corporate social event, before which they had been warned to observe the normal standards of behaviour and conduct. However after they began drinking, they fell out and Mr Jones punched Mr Battersby in the face. After the event Mr Battersby sent a number of texts to Mr Jones threatening to, amongst other things, “rip your f*ing head off” but these threats were never carried out.

The resulting disciplinary investigation ended with Jones being dismissed and Battersby being given a final written warning. Jones brought a claim for unfair dismissal, which the Tribunal upheld because the two had been treated differently.

However this was overturned on appeal. The EAT considered that the Tribunal had not considered the test set out in section 98(4) of the ERA, namely the requirement to recognise that there may be a variety of reasonable ways in which an employer can react to circumstances which may give rise to dismissal. The Judge had failed in particular to consider whether there was a decision made in absolutely identical circumstances which made it unreasonable for the employer to dismiss the employee. In this case, the Judge had not drawn a distinction between a deliberate punch in the face at a designated work place and a threat afterwards which was never carried out. The EAT considered that, had he done so, he must surely have concluded that the circumstances were different, requiring a different approach from the employer to the two cases.

This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.

For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.