Violence At WorkPosted in : HR Updates on 9 December 2015 Issues covered:
In the recent case of MBNA Ltd v Jones the Employment Appeal Tribunal (“EAT”) examined different acts of violence and threatening conduct by employees and whether the employer had acted unfairly by treating them differently by imposing different sanctions to each employee.
Mr Jones was employed by MBNA bank and in November 2013, MBNA held a social event at a racecourse to celebrate the Bank’s 20th anniversary. Although it was a social event, all employees were informed that it was still a work event and company policies applied.
During the event, there was an incident, which witnesses stated started as ‘banter’ between Mr Jones and another employee. However, this escalated and culminated in Mr Jones punching the other employee in the face. Mr Jones then left the event and the other employee whom he had punched, texted Mr Jones several times and threatened significant violence against Mr Jones. However, these text messages were not followed up by the employee and there was no further incident between them.
MBNA investigated both incidents and brought disciplinary proceedings against both employees for their conduct. The same manager also conducted their disciplinary hearings. In Mr Jones’ case, the manager found that he had not been significantly provoked into punching the other employee and had risked the reputation of the bank by his conduct and concluded he had committed gross misconduct and dismissed him. However, in relation to the other employee who sent the text messages to Mr Jones, the manager found that although the text messages were extremely inappropriate and violent, they were sent as an immediate response to being punched in the face by Mr Jones. Therefore, the manager concluded the employee’s conduct was also gross misconduct, but gave him a final written warning.
Mr Jones issued an Employment Tribunal claim for unfair dismissal, claiming that MBNA had acted unfairly due to the disparate sanctions imposed on him and the other employee. The Employment Tribunal upheld Mr Jones’ claim and outlined that MBNA had acted unreasonably by the different treatment of Mr Jones and the other employee. MBNA should not have concluded that the text messages were sent in “immediate response” to being punched by Mr Jones and they had applied the “defence of provocation” differently. Therefore, the dismissal was unfair. MBNA appealed the decision to the EAT.
The EAT upheld MBNA’s appeal and outlined that when the Tribunal is considering a claim of unfair dismissal on the grounds of disparity of treatment, they must concentrate on the treatment of the person bringing the claim; if in the circumstances it was reasonable to dismiss the employee, the fact that the employer has been lenient to another employee is irrelevant.
The EAT did outline that the case of Hadjioannou v Coral Casinos Ltd 1981 IRLR 352 did provide that when there was a wholly analogous case, the decision in that case could support the argument it was not reasonable to dismiss, however this is extremely rare that two cases have sufficiently similar facts. The EAT outlined the Employment Tribunal had erred in their decision-making by finding MBNA had been unreasonably lenient to the employee, they should have only focused on Mr Jones. Essentially, the EAT outlined that the facts of Mr Jones and the other employee conduct were not sufficiently similar to support the decision that the different treatment of them both was unreasonable and therefore unfair. Accordingly, the EAT substituted the Employment Tribunal’s decision of unfair dismissal to that of a fair dismissal.
It is common for employees to allege differential treatment when faced with disciplinary proceedings and/or sanctions. However, this case highlights that only when the facts of the cases are wholly similar will it be able to be used to support an argument of unfairness.
Note: Helen O'Brien wrote another article covering the MBNA Ltd v Jones case entitled Disparity In Treatment Of Employees And Unfair Dismissal.This article is correct at 18/12/2015
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