MBNA Ltd v Jones

Under section 98(4) of the Employment Rights Act 1996, the question is whether dismissal of the employee concerned fell within the range of reasonable responses. A tribunal must not substitute its own assessment for that of the employer.

Disparity of treatment is relevant only in limited circumstances. Undue leniency towards another employee does not itself make a dismissal unfair. A comparator must be truly or sufficiently similar, and the tribunal must focus on the circumstances of the dismissed employee. Provocation in a disciplinary context is mitigation, not a legal defence subject to a separate test.

The employer appealed against the decision of an Employment Judge at Wrexham, dated 21 December 2014, which upheld the employee’s claim for unfair dismissal.

The employee had been summarily dismissed for punching a colleague at a work-organised event. The colleague, who later sent violent text messages, received a final written warning. The Employment Judge found the dismissal unfair solely because the employer had applied provocation inconsistently and had treated the colleague more leniently.

The central issue was whether that disparity reasoning correctly applied section 98(4) of the Employment Rights Act 1996 and the guidance in Hadjioannou v Coral Casinos Ltd [1981] IRLR 352.

1. Appeal allowed. The finding of unfair dismissal could not stand. The EAT substituted a finding that the dismissal was fair.

2. Section 98(4) required the Employment Judge to decide whether it was reasonable to dismiss this employee, having regard to equity and the substantial merits. The tribunal had to assess the investigation, procedure, conclusions and sanction through the range of reasonable responses. It was not entitled to substitute its own assessment of the employer’s decision-making.

3. The Judge erred by failing to apply the guidance in Hadjioannou v Coral Casinos Ltd [1981] IRLR 352. Disparity may matter where comparators are truly parallel, but an employer’s undue leniency to another employee is otherwise immaterial. The employees were not sufficiently similar: the claimant deliberately punched his colleague at a designated work event, whereas the colleague later made threats which he did not carry out.

4. The Employment Judge’s conclusion that the employer had been unreasonably lenient to the colleague did not answer the statutory question. He had already found that the employer could reasonably conclude that the claimant was not sufficiently provoked, that his conduct was gross misconduct, and that dismissal was reasonable.

5. Provocation was a matter of mitigation. It was not a defence requiring the employer to formulate or apply a particular legal test. The Employment Judge’s supposed difference in provocation tests was therefore an impermissible substitute for the statutory inquiry.

6. Applying Jafri v Lincoln College [2014] ICR 920, substitution was appropriate because the Employment Judge’s findings permitted only one result once the law was correctly applied: the dismissal was fair.

• Employment Appeal Tribunal: Allowed the employer’s appeal and substituted a finding that the dismissal was fair: [2015] UKEAT 0120_15_0109.
• Employment Tribunal, Wrexham: Employment Judge Emery upheld the employee’s unfair dismissal claim by a judgment dated 21 December 2014. The judgment was reversed on appeal.