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Inconsistent decisions: when is it appropriate to treat two employees in similar circumstances differently? – MBNA Limited v Jones UKEAT/0120/15
The background: If an employee is dismissed for misconduct and brings an unfair dismissal claim, the tribunal must decide whether the employer acted ‘reasonably’ in the circumstances. Employers should normally act consistently with previous decisions, but a previous decision not to dismiss for the same misconduct will only make a dismissal unfair in 2 types of case (Hadjioannou v Coral Casinos Ltd [1981]):
‘Condonation’ – where the employer’s previous actions have led employees to believe that some types of behaviour will be overlooked.
Where employees in ‘truly parallel circumstances’ arising from the same incident are treated differently.
The facts: Colleagues Mr J and Mr B attended a work social event together, where they both drank alcohol. At one stage Mr B kneed Mr J in the leg, and Mr J retaliated by punching Mr B in the face. Later in the evening, Mr B sent several texts to Mr J making threats of physical violence (which were never carried out). After an investigation and disciplinary hearings, Mr J was dismissed, while Mr B was only giving a final written warning (on the basis that, while the texts were violent, they were made as an immediate response to Mr J punching him). Mr J claimed unfair dismissal.
The decision: The EAT found that Mr J’s dismissal was fair. Where 2 or more employees are involved in the same incident, the relevant question is still whether the employer has acted reasonably towards the employee who has been dismissed, regardless of what sanction was applied to the other. Disparity of treatment can be relevant to reasonableness, but the circumstances need to be ‘truly parallel’, which was not the case on the facts. It is also worth noting that provocation may be a mitigating factor for an employer to consider, but it is not an official ‘defence’ to misconduct.
Cap on public sector exit payments: draft regulations published
The government has published draft ‘Public Sector Exit Payment Regulations 2016’ which will impose a cap of £95,000 on the total aggregate value of exit payments made to most public sector workers. The draft regulations, published for illustrative purposes only at this stage, follow the government’s recent response to its consultation and contain more details of the proposal.
Payments included in cap:
- Redundancy and voluntary exit payments
- Payments to reduce/eliminate an actuarial reduction to a pension on early retirement
- Payments to discharge liability under a fixed-term contract
- Payments by way of shares on loss of employment
- Any other payment (whether or not contractual) made in consequence of loss of employment (including payments in lieu of notice)
Payments not included in cap:
- Payments for incapacity / death as a result of accident, injury or illness
- Payments for accrued but untaken holiday
- Bonus payments
- Damages ordered by a court
- Early retirement payments to firefighters
- Payments to employees with protected terms following a TUPE transfer
Source: Draft Public Sector Exit Payment Regulations 2016.
Acas publishes new guide to workplace investigations
Acas has published new guidance on how to conduct workplace investigations, providing a helpful step-by-step guide for anyone who has been appointed to conduct disciplinary or grievance investigations.
Tackling intimidation of non-striking workers: Government publishes response to consultation
In July, BIS published a ‘Consultation on tackling intimidation of non-striking workers’. Among other things, the proposals included plans for a new criminal offence of intimidation on the picket line. However, the government has now confirmed that it is not pursuing the majority of its proposals and will take only two matters forward (as part of the Trade Union Bill 2015-16):
- The Code of Practice on Picketing will be improved and updated to set out the rights and responsibilities of those involved in strikes, including in relation to the use of social media.
- Clause 9 of the Bill (which states that unions must appoint a ‘picket supervisor’ who must have written authorisation from the union) will be amended to clarify that the letter of authorisation applies to the picketing activity (and so does not require the picket supervisor’s name) and that entitlement to see the letter applies only to the employer (or their agent).
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