Does an employer have to treat employees the same in order to make a dismissal fair?

Paula Stuart | Nov 2015

Not necessarily, advises Employment Lawyer Paula Stuart following the recent Employment Appeal (EAT) Decision in MBNA Limited v Jones.

In this case two employees attended a company social event at Chester Racecourse. Staff were told it was a work event and that normal standards of behaviour and conduct would apply.

Two employees, Mr Jones and Mr Batersby began drinking and had an argument. Mr Jones punched Mr Battersby in the face. In turn, later on, after the event, Mr Battersby texted Mr Jones on a number of occasions threatening, inter alia, to “rip your ****** head off”. He never carried out his threats.

The company carried out a disciplinary investigation against both employees. The outcome was that Mr Jones was dismissed for his behaviour but Mr Battersby was given a final written warning.

The Employment Tribunal had found Mr Jones’ dismissal to be unfair because of the inconsistency of treatment between the two employees. However, on appeal, the EAT overturned this decision. The EAT said it does not automatically make a dismissal unfair if the company is unreasonably lenient against one employee. The test to be applied, as set out in section 98(4) of the Employment Rights Act 1996, is whether the company’s decision to dismiss was within the range of reasonable ways in which an employer may react to the circumstances which give rise to the dismissal.

If you require advice regarding disciplinary issues, dismissal or any other employment matter then please contact Paula Stuart on 01908 689345 or email

Paula Stuart, Partner

Paula Stuart | Partner

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Categories: Employment