The Employment Appeal Tribunal (EAT) has found a dismissal was fair even though another employee involved in the misconduct at a work event received a more lenient sanction. Key differences justified the disparity of treatment.
HR practitioners can read the fact of the incident in MBNA Ltd v Jones EAT/0120/15 but what is interesting is that the EAT has reminded us that under existing case law (derived from Hadjioannou v Coral Casinos Ltd  IRLR 352) warning against adopting a ‘tariff’ approach and stated that it was of the highest importance that flexibility should be retained when an employer had to deal with work place misconduct.
The EAT (in a confirmed judgement Paul –v- East Surrey District Health Authority 1995 IRLR 305) has said there are three possible ways where decisions made by an employer in truly parallel circumstances in relation to a different employee may be relevant:
- employees may be led by an employer to believe that certain categories of conduct will be overlooked or will be more mercifully treated in the light of the way that other employees have been dealt with in the past,
- the dismissal in the instant case is not for the reason put forward i.e. that the asserted reason is not the real or genuine reason,
- ‘evidence as to decisions made by an employer in truly parallel circumstances may be sufficient to support an argument in a particular case that it was not reasonable on the part of the employer to visit the particular employee’s conduct with the penalty of dismissal and that some lesser penalty would have been appropriate in the circumstances.’
In the judgement Waterhouse J said ‘It is only in the limited circumstances that we have indicated that the argument [disparity argument] is likely to be relevant and there will not be many cases in which the evidence supports the proposition that there are other cases which are truly similar or sufficiently similar to afford an adequate basis for the argument.” So, parallel circumstances will normally lead to the same outcome.
The expectation is highlighted by reference to the 1996 Act (as amended), that is the emphasis is upon the particular circumstances of the individual employee’s case which can be read as “an employer is entitled to take into account not only the nature of the conduct and the surrounding facts but also any mitigating personal circumstances affecting the employee concerned. The attitude of the employee to his conduct may be a relevant factor in deciding whether a repetition is likely. Thus an employee who admits that conduct proved is unacceptable and accepts advice and help to avoid a repetition may be regarded differently from one who refuses to accept responsibility for his actions, …”.
Paul –v- East Surrey District Health Authority 1995 IRLR 305
Hadjioannou v Coral Casinos Ltd  IRLR 352
MBNA Ltd v Jones EAT/0120/15  UKEAT 0120_15_0109
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Xpert HR for highlighting the case of MBNA v Jones