In a recent case of MBNA Limited v Jones [2015], the EAT has held that a dismissal of one employee and not the other, where both are guilty of gross misconduct is fair.

The Claimant (C) was employed by the MBNA as a Collections Officer. In November 2013, an event was held at Chester Racecourse. Staff were informed that it was a work event and any misbehaviour would be subject to MBNA’s procedures and guidelines. C attended the event along with another employee, B, and B’s sister. Both B and C had been drinking alcohol before and during the event. Later on in the event, C put his arm around B’s sister and B kneed C in his leg. C retaliated by punching B in the face.

C subsequently left the event and went on to a pub. B followed him and waited outside and began sending C text messages threatening him with physical violence. B did not carry out his threats and there was no further incident between the two. MBNA conducted an investigation and following a disciplinary hearing, C was dismissed. B was issued with a final written warning on the basis that MBNA found that the text messages ‘were of an extremely violent nature and were wholly inappropriate’. He was not dismissed as MBNA found that the messages were not made as an immediate response to C punching B.

C unsuccessfully appealed against his dismissal and subsequently brought a claim for unfair dismissal in the Employment Tribunal (ET). The ET held the decision to dismiss C, whilst not dismissing B, was unfair.

The ET also held that MBNA had applied the ‘defence of provocation’ differently to B, which the ET deemed unreasonable.

MBNA did not deem B’s actions to be a valid defence of provocation for C to punch B. However, the fact that B was punched causing him to send threatening messages to C was deemed to amount to provocation beyond reasonable measure. On this basis the ET ruled that C’s dismissal was fair. MBNA appealed the decision.

The Employment Appeal Tribunal (EAT) allowed the appeal and held that ET had erred by not applying the statutory test in the Employment Rights Act 1998 (i.e. whether MBNA’s decision to dismiss C was a reasonable one for the purposes of the Act). The EAT also found that the ET had failed to follow the guidance set out in Hadjioanouu by addressing the question of whether the circumstances of C and B were sufficiently similar to be considered “truly parallel”. The EAT stated that had the ET addressed this question it would have found that they were not truly parallel.

This case highlights to employers that each employee’s case in matters of gross misconduct should be dealt with carefully and separately. When disciplining employees, each facts of the cases should be looked into carefully, but it does not necessarily follow that all employees involved will need to be dealt with in the same manner.
For further information, please contact Koichiro Nakada – Head of Japan Business Group (koichiro.nakada@lewissilkin.com) and Yoko Nakada - Senior Associate, Deputy Head of Japan Business Group (yoko.nakada@lewissilkin.com).
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