There can be different sanctions for two people in same incident

In a recent case involving an altercation at an office function, the Employment Appeal Tribunal held that where the two employees involved have behaved differently, it will not be unreasonable to apply different sanctions.

The case of MBNA Limited v Jones considered conduct at a racecourse event held by MBNA for its employees. MBNA told its employees in advance that normal workplace guidelines and disciplinary procedures would apply.

Two employees, Mr Jones and Mr B, attended the event together with Mr B’s sister, and engaged in what was described as “fun banter” which included Mr Jones licking Mr B’s face and Mr B kneeing Mr Jones in the back of his leg. The evening progressed, and on seeing Mr Jones with his arm around Mr B’s sister, Mr B again kneed Mr Jones. Mr Jones responded by punching Mr B in the face. Mr Jones and some others then went on to a club. Mr B waited outside, sending seven threatening texts to Mr Jones. None of these threats were carried out and Mr B eventually left without seeing Mr Jones again.

Both men were subject to disciplinary hearings chaired by the same person. These hearings resulted in Mr Jones being dismissed on the basis that he had not been substantively provoked by Mr B, but had started the whole affair by licking Mr B and then over-reacted by punching Mr B. Mr B was given a final written warning, on the basis that the kneeing was not done with any force or aggression and while the threatening texts amounted to gross misconduct, they were an “immediate response” to Mr Jones punching him in the face.

Mr Jones claimed that he had been unfairly dismissed, and complained to the employment tribunal. It was held that MBNA had acted unreasonably by applying the “defence of provocation” differently in each case.

However, the tribunal overturned this judgment, holding that the two employees’ conduct had not been “truly parallel” as there were important distinctions between the two cases. MBNA was therefore entitled to treat the allegations differently.

The tribunal also found that while provocation is not a total defence, it can be a mitigating factor to be considered by the employer.

As MNBA reminded its employees before the racecourse night, employer-organised events are normally an extension of the working environment and usual rules apply. Before work nights out, employers would be wise to ensure they have appropriate guidelines and disciplinary procedures in place, that the rules are communicated to employees, and they are implemented fairly.

This case does provide some comfort to employers. If employees have behaved differently in relation to the same incident, employers should consider each allegation of misconduct individually and take into account each employee’s own actions and any mitigating circumstances.

It also reinforces the leeway that employers have in choosing what sanctions to impose for misconduct, provided they carry out a fair and thorough investigation, go through a fair disciplinary process, and consider carefully the appropriate sanction. if different disciplinary sanctions are applied to employees involved in the same incident, employers should clearly explain the distinguishing features in order to lower the risk of a challenge on grounds of inconsistent treatment.

• Neil Maclean is head of employment and Katie Russell is an employment partner with Shepherd & Wedderburn www.shepwedd.co.uk