Sometimes it’s no party after the Christmas party. Unfair dismissal claims: when is it ok to sack one employee but not another?

With it almost being Christmas party season, I thought I would cover something perhaps a bit topical. I was asked last week whether we get lots of calls from clients after Christmas parties. Truth be told, I am disappointed to say that the answer is “not so much any more”.
However, the EAT recently ruled on a case which did involve a punch up following a work party where one employee was sacked, and the other wasn’t. Can an employer do this, and if so, under what circumstances?
There had been a bit of a falling out during the event which seemed to have come about as a result of one employee (Mr Battersby) not appreciating another employee’s (Mr Jones) behaviour towards his sister. This resulted in Mr Jones punching Mr Battersby in the face at the party. After the event had finished, Mr Battersby then repeatedly sent violent and threatening texts to Mr Jones. Mr Battersby however never carried out his threats.
Both of them were disciplined, with Mr Jones being summarily dismissed, and Mr Battersby being given a final written warning. Mr Jones complained that this was unfair because of the disparity in sanctions and the Employment Tribunal agreed.
However, MBNA then appealed and the EAT upheld the appeal, stating that the Tribunal had essentially been distracted by issues such as provocation and overlooked the main question to be asked which was: had the employer reached a reasonable conclusion and applied a sanction that was within the range of reasonable responses?
The EAT decided the dismissal was fair, and where issues of disparity of sanctions might arise, then only where the circumstances are “truly parallel” can such an argument in this type of case succeed. In this case the two employees faced different disciplinary allegations: one had assaulted the other in the workplace; the other had threatened, but not carried out those threats away from the workplace.
What does this case mean for employers?
This case demonstrates how it is difficult for employees to question the fairness of a sanction.   Some practical steps to take might include:

  • Ensure that acceptable conduct at work-related social events is made clear to employees and included within their disciplinary policy.
  • Carry out fair and thorough disciplinary investigations, being clear on the specific allegations.
  • When considering sanctions, question whether they are within the range of reasonable responses.
  • Give reasons for any disparate sanctions where cases are similar, and even where an employee might perceive that they are similar!