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Case law: Employer could discipline two employees differently because their circumstances were not 'truly parallel'

Employers could impose apparently inconsistent disciplinary sanctions on different employees because their circumstances are not 'truly parallel', a ruling has made clear.

Legal Alert

This update was published in Legal Alert - December 2015

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

Two drunk employees clashed at a work anniversary day out at the races. There was physical contact (kneeing and a punch) and texted threats of violence. Employees had been told in advance by their employer that they should behave appropriately.

The manager conducting the consequent disciplinary proceedings decided one employee had actually been violent while the other had merely threatened violence – and had only done so in response to the first employee's behaviour. One was given a final written warning and the other was summarily dismissed. The latter appealed but the manager hearing the appeal decided he would have dismissed both employees. He had no power to increase the penalty for the employee who had merely received a warning, but upheld the dismissal of the other.

The dismissed employee claimed unfair dismissal on grounds there had been inconsistent treatment of the two employees and this made his dismissal unfair. The employer argued that the fair dismissal of an employee could not be transformed into an unfair dismissal just because another employee had been treated differently.

The Employment Appeal Tribunal (EAT) said that the main test of fairness is whether it was reasonable in the circumstances for the employer to treat the reason relied upon for dismissal as a sufficient basis for doing so. If it was, an employer's more lenient treatment of another employee is almost always irrelevant.

However, it said that there were three situations where inconsistent treatment of employees could be relevant, and mean an otherwise fair dismissal is unfair. The three situations were:

  • One employee is treated in such a way that it leads another to believe that certain acts or conduct will not lead to his dismissal – but is then dismissed for such act/ conduct
  • The inconsistent treatment suggests that the reason given for the employee's dismissal is not the real reason
  • The inconsistent treatment is in 'truly parallel circumstances', which suggests that it was not reasonable to dismiss one of the employees after all

In this case the employee was claiming that the third situation applied. The EAT said that the test of whether circumstances were truly parallel was a very strict test, and small differences could mean the circumstances were not truly parallel. For example, situations may not be truly parallel if:

  • One employee showed remorse but not the other
  • One employee was more experienced than the other, so different standards of behaviour could be expected
  • One employee had been provoked more than the other

The EAT ruled that the circumstances were not truly parallel, so the dismissal was fair.

Operative date

  • Now

Recommendations

  • Employers disciplining employees may impose apparently inconsistent disciplinary sanctions on different employees guilty of similar acts or misconduct, unless there are exceptional circumstances, for instance, their circumstances are not 'truly parallel'
  • If in doubt take specialist legal advice

Case ref: MBNA Ltd v Jones UKEAT/0120/15/MC

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