Our previous article on the Court of Appeal case of Newbound v Thames Water Utilities Limited highlighted the difficulties with applying different disciplinary sanctions to employees involved in the same incident.
As the Christmas party season approaches, we look at two recent cases involving the disparity in disciplinary sanctions given to employees involved in incidents at work events.
The recent Tribunal case of Westlake v ZSL London Zoo concerned an altercation between two zookeepers (being the current and former girlfriends of another zookeeper colleague – described in some parts of the media as a ‘zookeeper love triangle’!) at the Christmas party. It was a serious matter, with one of the women being injured by a wine glass in the face and needing stitches.
Ms Westlake was dismissed, whilst the other zookeeper received a final written warning and was banned from attending the zoo’s social events. Ms Westlake brought a claim on the basis that it was unfair that she had been dismissed when both of the women been equal participants in what happened, i.e. they should both have received a final written warning.
The Tribunal found that, on the facts of this case, the decision to dismiss was one that no reasonable employer would have made, and therefore the dismissal was unfair. The Tribunal also held that had the zoo dismissed both of the zookeepers involved in the fight, then the dismissal would have been fair. However, although the claim for unfair dismissal succeeded, her compensation was reduced to zero on the basis of contributory fault, i.e. the fact that it was her own behaviour that caused the dismissal.
The matter was also reported to the police and Ms Westlake was subsequently convicted of assault. She was required to pay compensation to the victim.
In contrast, in the recent case of MBNA v Jones the EAT considered the disparity in treatment of two employees who had both been found guilty of gross misconduct in relation to an incident which occurred at a work event. Mr Jones was dismissed, however the other employee received a final written warning. He argued that his dismissal was unfair because of inconsistent treatment.
The Tribunal had found Mr Jones’ dismissal was unfair, however MBNA successfully appealed to the Employment Appeal Tribunal. The EAT held that the circumstances of the employees involved had to be “truly parallel” for the disparity of treatment to be unreasonable. Here, there were sufficient differences in the employees’ situation as to explain the difference in treatment. In particular, Mr Jones was found to have started the altercation and had punched the other employee, and the other employee’s actions were in response to this provocation.
If in doubt as to whether a dismissal may fall within the band of reasonable responses, it is always worth taking advice to get an independent view on the appropriateness of the penalty in the circumstances. We are experienced at advising on disciplinary cases of all kinds and a quick call to us can save you becoming embroiled in a costly dispute.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).