In Paul v East Surrey District Health Authority, the Court of Appeal adopted the EAT’s reasoning in Hadjioannou v Coral Casinos Ltd that in determining the fairness of a dismissal where inconsistent treatment is claimed, it is necessary to decide whether the facts are truly comparable. The Court indicated that it was rare for two separate incidents of misconduct to be exactly the same and in deciding whether they were like-for-like, the factors included the nature and degree of the misconduct, any mitigating circumstances and each employee’s attitude.

In MBNA Limited v Jones, the employer held an event to celebrate its 20th anniversary.  Staff were told that it was a work event and that normal standards of behaviour and conduct would apply.  Early during the event, Battersby (B) kneed Jones (J) in the back of his leg. J then licked B’s face.  Later, J had his arms around B’s sister. B kneed J in his leg again.  J then punched B in the face. J went to a club after the event.  B waited outside and sent J seven texts threatening to “rip your f*****g head off” but did not carry out his threats.  Following an investigation J and B were charged with misconduct and attended disciplinary hearings conducted by the same manager.

J was dismissed on the basis that there was no substantive provocation by B and his misconduct at a company event could have affected the employer’s reputation. B was issued with a final written warning. The manger decided that the texts B sent were of an extremely violent nature and wholly inappropriate, but were made as an immediate response to J hitting him, they were made after the event and there was no intention to follow them through.

An employment judge (EJ) found J’s dismissal to be unfair. He found that a reasonable employer would be entitled to find that in the circumstances, J was not provoked “beyond reasonable measure”.   However, the decision to dismiss J and give B a final written warning was as a result of the different provocation test applied to both, and this amounted to an unreasonable disparity of treatment between the two of them. In J’s case, the B’s actions had not been deemed to be a valid defence of provocation but in B’s case, the fact he was punched leading him to send texts several hours later was deemed to amount to provocation beyond reasonable measure. 

The EAT upheld MBNA’s appeal and substituted a finding of fair dismissal. The EJ erred by not following the guidance in Hadjioannou and departed from the statutory test of reasonableness in the Employment Rights Act 1996.  If he had done so he would have recognised key differences between the two cases for the purposes of an argument that there had been a difference in treatment, i.e. a deliberate punch in the face at what was designated to be a workplace event and a threat made afterwards which was not carried through. Furthermore, contrary to the EJ’s interpretation of the facts, MBNA had not approached the matter by considering a defence of provocation in both cases.

Where more than one employee is involved in a case of related misconduct it can sometimes be argued that there has been a difference in the disciplinary sanctions applied. The same disparity argument may be raised by employees, or their representatives, pointing back to what they regard as similar cases in the past. This ruling reminds employers of the test to be applied, stemming from the Paul and Hadjioannou cases above.

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