Employment Law Snapshot

Welcome

Welcome to Issue 7 of my Employment Law Snapshot.

This week’s bumbling nonsense was inspired by one of the best employment related newspaper headlines that I’ve read for a couple of years – “Meerkat handler who glassed zoo colleague in Christmas party catfight over a llama keeper wins her unfair dismissal case.”

That’s right, your eyes are not deceiving you; this was a case about a Meerkat handler who was sacked after attacking her llama keeper boyfriend’s former girlfriend at the work Christmas party. She won her unfair dismissal claim because the employment tribunal decided that both women should have been sacked.

However bizarre the story is, it does raise a common problem for employers who give different disciplinary sanctions to employees who are involved in the same incident, which I will look at in this week’s case.

Be warned, the details of the case involve fighting and swearing, but it is by no means a Llama Drama Ding Dong…..

The Legal Stuff

This week’s case is called MBNA Ltd v Jones.

Mr Jones was employed by MBNA. MBNA hosted a work function and told staff that normal standards of behaviour would apply and any misbehaviour would be subject to the company’s disciplinary policies.

Mr Jones went to the event along with another employee, Mr Battersby and Mr Battersby’s sister.

This is where things started to go wrong. According to the Employment Tribunal’s judgement, Mr Jones was kneed in the back of his leg by Mr Battersby. He reacted by licking Mr Battersby in the face. Mr Jones was also seen with his arms around Mr Battersby’s sister, prompting a second knee to Mr Jones’ leg from Mr Battersby. Mr Jones responded by punching Mr Battersby in the face.

Mr Jones then went to a club and Mr Battersby waited outside and texted Mr Jones seven times, threatening to rip his “f****** b****** head off”. However, Mr Battersby did not carry out his threats.

Mr Jones was dismissed by MBNA for his behaviour, which was viewed as gross misconduct. However, Mr Battersby was only given a final written warning.

Mr Jones brought an unfair dismissal claim in the Employment Tribunal and won. The Employment Tribunal decided that the decision to dismiss Mr Jones but only give a final written warning to Mr Battersby was unfair because it amounted to an unreasonable inconsistency of treatment.

MBNA appealed against the finding of unfair dismissal.

MBNA won.

The Employment Appeal Tribunal said that when it comes to considering different treatment between employees, the Employment Tribunal should have focussed on the legal test of whether MBNA’s decision to dismiss Mr Jones fell within the ‘range of reasonable responses’ that a reasonable employer might have taken.

Instead, the EAT said that the original Employment Tribunal had lost sight of this test and had wrongly focussed on how Mr Battersby (and not Mr Jones) was dealt with by MBNA.

Consequently, the EAT said that if it was reasonable for MBNA to dismiss one employee, the mere fact that MBNA was unduly lenient to another employee was “neither here nor there”.

The EAT said that there can be some situations when it might be unreasonable to treat two employees differently in “truly parallel circumstances” arising from the same incident, but that this would be rare.

The EAT commented that it considered that the circumstances between Mr Jones and Mr Battersby were not sufficiently similar to be considered as “truly parallel”. This was because Mr Jones punched Mr Battersby at a work event when he knew that he would be subject to MBNA’s disciplinary rules. However, Mr Battersby sent threatening text messages but he was not violent. As such, the circumstances were not “truly parallel”.

Therefore, Mr Jones’ dismissal was fair.

This case shows that an employee cannot simply rely on any leniency shown to another employee arising out of the same incident, as long as the employer can show that their decision to dismiss was within a band of reasonable responses. But don’t forget, there can be rare occasions where the offences committed by the two employees are so similar (or ‘truly parallel’) that leniency towards one of the employees could lead to a finding of unfairness for the employee who is dismissed. This appears to have been the situation in the case that will now become known as Llama v Meerkat. When more than one person is involved in an incident of misconduct, it’s always worthwhile taking some advice before any decisions about sanctions are taken.

And Finally…

Over the years, I have advised a lot of businesses in relation to their recruitment policies. Thankfully, I don’t practice law in Indonesia. That’s because last week I read a bizarre article which reported that the Indonesian government is currently going through a recruitment process for a new prison that is going to be built on an island. However, rather than trying to recruit human prison guards, they have decided (in their infinite wisdom) to use crocodiles instead! According to their anti-drugs agency, crocodiles will make better guards because they cannot be bribed.

The recruitment process has involved various visits to a number of Indonesian archipelagos to find the fiercest crocodiles available.

I wonder what would happen if a disgruntled crocodile didn’t get the job – could it sue the Indonesian government? Presumably, it would have to find a good liti-gator…..

Sorry.

Darren