Disparity In Treatment Of Employees And Unfair Dismissal

Posted in : HR Updates on 25 February 2016
Helen O'Brien
Personnel and Training Services
Issues covered:

Today’s article looks at the disparity in treatment of employees and unfair dismissal.

Two employees are involved in actions of gross misconduct that merit dismissal. After an investigation into the events, the employer finds that the underlying facts are not similar and so he decides to dismiss one of the employees but to give the other a final written warning.

How safe is the employer from a claim of unfair dismissal? Is an employee’s dismissal for misconduct unfair if another employee involved in the same incident receives only a final warning?

Examining the scenario in more detail

J and B attended a work’s social event. They had been warned that normal standards of behaviour would apply and that any misconduct would be subject to the organisation’s disciplinary procedures.

The two employees had been drinking before and during the event and became involved in arguments, which lead to J punching B in the face. B later sent several threatening text messages to J.

As a result, both employees were subject to the firm’s disciplinary proceedings. J was subsequently dismissed while B received a final written warning.


This was an actual case last year - MBNA Ltd v Jones. The EAT said in its judgment that the circumstances of J (Jones) and B (Battersby) were not "truly parallel". Jones had punched Battersby in the face at the works event. Battersby had sent text messages after the event threatening violence. While these were reprehensible, Battersby did not carry out his threat in the workplace or anywhere else. Physical violence during the works event and threats of violence outside work were not sufficiently similar to be “truly parallel”.

In this case, therefore, and applying the EAT guidance in 1981, while both employees were guilty of gross misconduct for their part in the same incident, this alone did not render their behaviour "truly parallel" so as to make Jones’ dismissal unfair.

The EAT also pointed out that provocation may be a mitigating factor to be considered by the employer but cannot amount to a defence to misconduct.

Employers’ checklist

We have created a list of top tips to help HR professionals effectively manage employee misconduct:

  • Set out in the organisation’s disciplinary rules the type of behaviour that can constitute misconduct and emphasise that disciplinary action will be taken in these circumstances, including the sanctions that will be imposed.
  • Remember that provocation can be a mitigating factor; but not a total defence to misconduct.
  • Be consistent in the application of sanctions.
  • Consider each case carefully and separately and assess whether or not the circumstances are “truly parallel”.
  • If they are, apply similar sanctions against each employee.
  • If they are not, then different treatment can be considered.
  • Be ready to explain the reasoning behind any disparity of treatment.
  • If a decision to dismiss is made, ensure that it is a fair dismissal — i.e. the substantive treatment of the employee was fair, the procedures, including an investigation, were reasonable and that the dismissal was among the band of reasonable responses.


The key factor for an industrial tribunal will be whether it is reasonable for the employer to dismiss the employee; the fact that the employer was lenient to another employee is irrelevant. Employers can be further reassured that it will be rare for the circumstances in such cases of misconduct to be ‘truly parallel’.

This article is correct at 25/02/2016

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.

Helen O'Brien
Personnel and Training Services

The main content of this article was provided by Helen O'Brien. Contact telephone number is 028 2564 4110 or email HelenOB@pts-ni.com

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