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Is physical violence the same as abusive texts?

We are all aware that work social events are well within HR’s remit and that any bad behaviour will be considered under the employer’s disciplinary procedures.  Indeed, it is common for employers to expressly state this in advance of any social event.  This might be seen as party-pooping but is a sensible precaution to warn everyone that a few drinks and some tinsel does not mean a free-for-all.  But what should you do when two employees actually end up in a fight at that party? Should employees be treated the same even if their actions are different? Is physical violence the same as violent threats sent by text?

In a recent EAT case, MBNA Limited (MBNA Limited v Jones UKEAT/0120/15) had taken the precaution of warning employees ahead of a work social event that normal standards of conduct would apply.  This did not prevent a spat between one employee (Mr B) putting his arm around the sister of another employee (Mr J) ending up with Mr J punching Mr B in the face.  Unfortunately the matter did not end there. Mr B followed Mr J to a nightclub and waited outside while sending threatening texts, including one which said he was going to “rip [Mr J’s] f***ing head off”.  Happily no further physical violence took place but both employees were disciplined for their actions.  Mr J (the puncher) was dismissed whereas Mr B (the texter) was given a final written warning.  In their defence to allegations of misconduct, both men claimed they had been provoked.  MBNA did not accept there was sufficient provocation for the punch but did accept that the punch was sufficient provocation for the texts.

Mr J complained that he had been unfairly dismissed, arguing that he and Mr B should have been treated the same.  An Employment Tribunal agreed that Mr J had been unfairly dismissed.  However, the Employment Appeal Tribunal disagreed, stating that the employer simply had a duty to treat Mr J reasonably.  As its decision to dismiss him was reasonable, the decision could not be made unreasonable just because Mr B had not also been dismissed.

I suspect no-one will be truly surprised that punching a colleague in the face would lead to dismissal.  However, it is a useful reminder of what we mean by treating employees “consistently”.  It is, of course, important to treat employees’ misconduct consistently.  However, that does not necessarily mean employers should treat people in exactly the same way just because their actions stem from the same incident.  The real tests for consistency in this situation should have been:

(a)   had the employer allowed employees to punch each other in the past and not done anything about it? If so, Mr J just might have been able to argue that he had no expectation of being dismissed because of his actions and that there must be another, unfair reason for his dismissal.  Clearly this was not the case here as physical violence was not (unsurprisingly) accepted in the workplace; and/or

(b)   were Mr B’s actions “truly parallel circumstances” – i.e. did he do the same thing as Mr J – had he punched someone? Again, this was not the case here as he had sent abusive texts but not been physically violent.

In the end, MBNA were allowed to treat Mr J and Mr B differently although it would probably have been reasonable to dismiss them both.  If there are genuine parallels between two cases of misconduct or poor performance, consistency should still be considered as part of the reasonableness of the decision.  However, employers should not be overly concerned with consistency otherwise. 

In this case, a punch was not the same as a text.

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