Is it unfair to impose different sanctions on employees who’ve committed similar misconduct?

Is it unfair to impose different sanctions on employees who’ve committed similar misconduct?

Being accused of treating employees inconsistently is something that often concerns employers. There’s a fear that to avoid a successful finding of unfair dismissal, sanctions need to be the same.

MBNA Ltd v Jones

In this case, Mr Jones was employed by MBNA as was a Mr Battersby. Both attended a work event at Chester Races as did Mr Battersby’s sister.

Both Jones and Battersby drank before and during the event.

This led to Jones putting his arm around Battersby’s sister. Which led to Battersby kneeing Jones in the leg. Which finally led to Jones punching Battersby in the face.

There were no further physical altercations. Although, later that day, Battersby sent Jones seven texts threatening resumption.

The employer dismissed Jones but gave Battersby a final written warning as a result of effectively accepting a provocation defence.

Jones brought a claim for unfair dismissal.

The decision

Jones initially won at the tribunal, but the employer successfully appealed the decision to the Employment Appeal Tribunal (EAT).

The first point the EAT made was that if it’s reasonable (applying the general law and usual principles) for an employer to dismiss an employee, the mere fact the employer was unduly lenient to another employee is irrelevant.

The EAT said that arguments about the disparity of treatment ought to be very rare. Because it would only be in “truly parallel circumstances” where two individuals had essentially committed an identical offence that a disparity argument would be relevant.

Such circumstances are very rare.

What this means for you

This is good news for employers because it, to a large extent, takes away concern that they often have.

In any given situation there might be two individuals who you feel should be dealt with differently.

Or you might have an incident of misconduct you want to deal with in a particular way but you’re conscious (or perhaps even being reminded) that you dealt with a similar incident in a different way before.

This case says that, firstly, each individual and each incident is dealt with on its own merits, applying the general principles of reasonableness and fairness.

After that, the circumstances need to be more than similar – they need to be pretty much identical – for you to have to worry about an inconsistency argument.

Even then, if there’s some reason you can see to distinguish two particular cases or two particular individuals then as long as that distinction is reasonable you should be fine.

Need advice? Get in touch today

Please call Ted Flanagan on 01482 324252.

Or email Ted here.

You can find out more about our Employment Law services here.

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