Employee involved in fight with colleague was fairly dismissed even though colleague was not dismissed

The Claimant, Jones, was employed by MBNA as a Collections Officer from February 2006. The Respondent organised an event for its 20th anniversary on 8th November 2013. All staff were notified prior to the event that as it was work related all procedures and guidelines relating to behaviour and conduct apply. B, Jones’ colleague, was also present at the event. Jones and B had started drinking alcohol before the event commenced. At the beginning of the event B kneed Jones in the leg, and Jones licked B’s face in return. This was thought to be fun and banter by the staff who witnessed it. Later in the evening, B kneed Jones in the leg again, and Jones punched him in the face. Jones and others left and went to a local club. B sent seven texts to Jones saying the he was waiting outside and will follow him home to “rip his head off”. However, B did not act on these threats, and in fact Jones only received them the following day.

Consequently, Jones was dismissed. B only received a final written warning because the employer did not believe he had the intention to follow through on the threats he sent. Jones claimed unfair dismissal.

The Employment Tribunal (ET) ruled that Jones’ sanction was excessive in comparison to B’s and therefore the dismissal was unfair. If both Jones and B were dismissed, it said, then both dismissals would have been considered fair. The employer appealed.

The EAT held that the ET should have applied s.98(4) of the Employment Rights Act 1996, and thus recognised that there are a range of reasonable responses available to an employer. The question which the ET should have considered was whether the employer’s dismissal of Jones fell within those reasonable responses. Furthermore, the conduct of Jones was not sufficiently similar to B’s conduct, as to give rise to an argument about disparity. Jones’ conduct was during an event where he knew that the employer’s rules and procedures would apply, whereas B’s actions were later that evening and away from the employer’s premises. Overall, the question in front of the ET was not whether B received a sanction which was too minor, but whether Jones’ sanction was reasonable. The EAT found that it was and substituted a finding of a fair dismissal.