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Employer liable for employee assaulting a customer

Employer liable for employee assaulting a customer

Is it fair for employees involved in the same disciplinary incident to be issued with different sanctions?

In the case of MBNA Limited v Jones, the EAT considered the issue of disparity of treatment and reasonableness and held that it was fair for an employer to dismiss the claimant for punching a colleague, who was not dismissed despite having kneed the claimant and subsequently sent abusive texts to him.

Mr Jones was employed by MBNA Limited. MBNA held an event which Mr Jones attended along with his colleague, Mr Battersby, and Mr Battersby's sister. Both Mr Jones and Mr Battersby drank alcohol before and during the event. At one stage, Mr Jones had his arm around Mr Battersby's sister which led Mr Battersby to knee Mr Jones in the leg. Mr Jones retaliated by punching Mr Battersby in the face. Mr Jones subsequently left the event and went to a club. While at the club, Mr Battersby waited outside and sent Mr Jones seven texts threatening him with physical violence. However, there was no further incident between Mr Jones and Mr Battersby.

Prior to the event, MBNA told staff that it was a work event, normal standards of behaviour and conduct would apply and any misbehaviour would be subject to MBNA's disciplinary procedures and guidelines.

After an investigation and disciplinary hearings, Mr Jones was dismissed for gross misconduct. Mr Battersby, on the other hand, was given a final written warning for sending text messages of an "extremely violent" nature but he was not dismissed on the basis that MBNA found that they were made as an immediate response to Mr Jones punching him.

Mr Jones brought a claim for unfair dismissal.

The tribunal found that the decision to dismiss Mr Jones but not Mr Battersby was unreasonable and Mr Jones' dismissal was unfair. MBNA appealed.

The EAT allowed the appeal finding that the tribunal had wrongly focussed on how Mr Battersby was dealt with, when it should have been considering whether MBNA reached reasonable conclusions and applied a reasonable sanction in Mr Jones' case, i.e. if it is reasonable for the employer to dismiss the employee, then the mere fact that the employer was unduly lenient to another employee is irrelevant.

The EAT noted that there may be occasions when arguments about disparity must be considered, but a tribunal must be very careful in doing so. The EAT referred to its guidance in the earlier case of Hadjioannou v Coral Casinos Ltd in which it stated that an employer's previous decisions not to dismiss employees for the same misconduct will only make a dismissal unfair in two types of case:

  • Where the employer has previously treated similar behaviour less seriously so that:
    • employees have been led to believe that certain categories of conduct will be overlooked or will not lead to dismissal; or
    • it can be inferred that the employer's asserted reason for dismissal in this case is not the real reason.
  • Where employees in "truly parallel circumstances" arising from the same incident are treated differently.

In this case, the tribunal did not expressly address the question of whether the circumstances between Mr Jones and Mr Battersby were sufficiently similar to be considered "truly parallel". If it had, the EAT said that it would have been bound to conclude that they were not. Mr Jones punched Mr Battersby during an event in respect of which he was expressly told that MBNA's disciplinary rules would apply. Mr Battersby, on the other hand, sent text messages threatening violence. While these were reprehensible, he did not in fact carry out his threat in the workplace or anywhere. Accordingly their behaviour was not truly parallel.

This is a useful reminder that in cases like this, the relevant question is whether the employer acted reasonably towards the employee who has been dismissed, regardless of what sanction has been applied to the other. Disparity of treatment will occasionally be relevant to reasonableness, but the circumstances need to be truly parallel and tribunals will need to look at all the circumstances very carefully before deciding that they are sufficiently similar.

When dealing with similar types of cases, employers should:

  • follow their disciplinary procedures fully to establish whether misconduct has occurred;
  • give thought to what an appropriate and reasonable sanction would be, taking into account sanctions issued previously to employees in similar circumstances; and
  • consider whether different sanctions for employees involved in the same incident is appropriate in light of the guidance in Hadjioannou above.

If you would like more information on dealing with employee issues please contact Amy Jones or a member of the Employment Law team on 01382 229111

Posted by Amy Jones


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