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Different treatment of employees involved in same incident did not make dismissal unfair

Posted by TonyBrownEmploymentSolicitor on November 24, 2015

Is an employee’s dismissal for misconduct unfair if another employee involved in the same incident receives only a final warning? Not necessarily.

In the next case, the employer held a works social event and informed staff that normal standards of behaviour and conduct would apply. J attended the event along with another employee, B, and B’s sister. During the evening, J put his arm around B’s sister to which B reacted by kneeing J in the leg. J retaliated by punching B in the face. Later that night, after the event had finished and employees had dispersed, B sent J a number of threatening texts.

Both J and B were subject to disciplinary proceedings.

At J’s hearing, the employer accepted that B had kneed J in the leg but said that this was not done with any force, and was insufficient provocation for J punching B. J was dismissed.

B, on the other hand, was given a final warning for sending text messages of an "extremely violent" nature but he was not dismissed because the employer believed that the texts had been provoked by J punching B.

At the hearing of J’s claim for unfair dismissal, the ET decided that the employer’s decision to dismiss J but not B was unreasonable and that the employer had also unreasonably applied the "defence of provocation" differently to the two men.

The EAT allowed the employer’s appeal The EAT said that the relevant question in cases like this should always be whether the employer has acted reasonably towards the dismissed employee, regardless of what sanction has been applied to other employees.

The tribunal had lost sight of the correct question and wrongly focussed on how B was dealt with, when it should have considered whether the employer reached a reasonable conclusion and applied a reasonable sanction in J’s case.

If it is reasonable for the employer to dismiss the employee, the mere fact that the employer was unduly lenient to another employee is irrelevant.

In cases where employers treat employees in "truly parallel circumstances" arising from the same incident differently, it may be unreasonable, and potentially lead to unfair dismissal, but not always. There will only be a few cases where circumstances are sufficiently parallel to result in an unfair dismissal.

The EAT said that the circumstances between J and B were not "truly parallel". J punched B at an event in respect of which he was expressly told that the employer’s disciplinary rules would apply. B, on the other hand, sent text messages threatening violence. While these were reprehensible, B did not carry out his threat in the workplace or anywhere.

The EAT also criticised the tribunal's reliance on the "defence of provocation", which it claimed had been applied differently between J and B. The EAT said that provocation can never be a defence and should only be a mitigating factor, to be weighed by the employer


As a matter of good practice, employers should consider the sanction that has been handed out to employees in similar circumstances and act consistently with previous decisions, unless there are important differences in the circumstances or the offence.

In this case, while both employees were guilty of gross misconduct for their part in the same incident, this alone did not render their circumstances "truly parallel" to make J’s dismissal unfair.

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

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