Festive fall-outs: a seasonal headache for employers

Even the best laid plans in preparation for workplace functions may not work out and employers can be left having to address the fall-outs formally. Two recent tribunal cases have addressed the inconsistent treatment of employees following work parties which involved the wrong kind of “punch” altogether. Other than giving us an unprecedented opportunity to include a genuinely topical rather than gratuitous picture of a llama in a Santa hat, a lot can be learned from these decisions about how the tribunals approach arguments of disparate treatment.

Westlake v ZSL London Zoo (ET/2201118/2015)

The facts of the case arose from events at the ZSL London Zoo’s Christmas party when a meerkat handler got into a fight with a monkey specialist over a llama keeper.

Mr Davies (the llama keeper) was the former boyfriend of Ms Saunders (the monkey specialist).  At the time of the event Mr Davies was going out with Ms Westlake (the meerkat handler). Before the event Ms Westlake had some wine and nibbles with colleagues. The party was held at the Zoo and began with a buffet at which employees were given one ticket to exchange for an alcoholic drink. There was also a paying bar.

There was differing evidence about how the incident started, whether there was provocation, who hit first and how it escalated, because there were no direct witnesses. The Employment Tribunal (ET) chose to “neutrally” describe it as an “altercation” but this may have been an understatement. It ended with Ms Saunders being struck in the face with a glass that Ms Westlake was holding, resulting in a deep cut to her cheek. Ms Westlake herself suffered a bruised arm and post-traumatic stress. Ms Westlake claimed that Ms Saunders had hit her in the face first and put her hands round her neck and that when she hit out she did not recall that she was holding a glass.

Ms Westlake was dismissed while Ms Saunders was banned from work social events and given a final written warning.

Ms Westlake brought a claim against ZSL London Zoo for unfair dismissal arguing the inconsistency of treatment. ET held that a reasonable employer could not have reached the decision to dismiss one employee (Ms Westlake) and only give the other protagonist (Ms Saunders) a final written warning. The reasons given by London Zoo for the disparate treatment had been the extent of Ms Sanders’ injury (in comparison to Ms Westlake’s), a “gut feel” that some witnesses were not telling the truth and that Ms Westlake had been more culpable.

The ET found that it was not reasonable to reach a decision that the entire responsibility for the incident should be placed on Ms Westlake simply because Ms Saunders had suffered the greater physical injury. The evidence did not support a basis upon which the Zoo could differentiate between the behaviour of the two employees and the ET held that the decision to dismiss Ms Westlake was unfair. Ms Westlake was not awarded any compensation on the basis that the outcome would have remained the same in any event.

The Employment Appeal Tribunal (EAT) in the second case came to a different conclusion.

MBNA Ltd v Jones [2015] UKEAT/0120/15/MC

WARNING:  THE FOLLOWING CASE REPORT CONTAINS LANGUAGE WHICH SOME READERS MAY FIND OFFENSIVE

MBNA Ltd celebrated its 20th anniversary with an event at Chester Racecourse. MBNA informed its staff that this was a work event, that normal standards of behaviour and conduct would apply and that misbehaviour would be dealt with under MBNA’s procedures and guidelines. The event was attended by Mr Jones and Mr Battersby, both MBNA employees, and Mr Battersby’s sister. Mr Jones started drinking before the event at around 5pm. Mr Battersby had started drinking earlier, at around midday.

Early during the event at the Racecourse there had been an incident which appeared to involve Mr Battersby kneeing Mr Jones in the back of his leg and Mr Jones licking Mr Battersby’s face. This was witnessed by other staff who regarded it only as “fun/banter”. At a later point Mr Battersby saw Mr Jones with his arm around Mr Battersby’s sister. He went over to them and kneed Mr Jones in the leg again. Mr Jones punched Mr Battersby in the face.

Mr Jones left the event at the Racecourse and went to a club with some others. Mr Battersby waited outside the club and texted Mr Jones seven times, threatening to rip his “fucking head off”. Mr Battersby, by text, invited Mr Jones to leave, saying he would follow him to where he was staying and rip his “fucking bastard head off”. Mr Battersby did not, however, carry out his threats and Mr Jones did not receive these texts until the following day.

Disciplinary proceedings against Mr Battersby

Mr Battersby was found to have sent texts which were of an “extremely violent nature and were wholly inappropriate”. However, the decision of MBNA was that they were sent as an immediate response to the punch in the face and that it was not the intention of Mr Battersby to follow through on those threats. Mr Battersby was given a final written warning.

Disciplinary proceedings against Mr Jones

Mr Jones was charged with punching Mr Battersby and in relation to behaviour which had the potential to seriously impair the reputation of the bank. Mr Jones argued that Mr Battersby had caused him a dead leg by kneeing him and that he had lashed out in self-defence. Mr Jones was dismissed.

MBNA did not agree that there had been substantive provocation to lead to his punching Mr Battersby. It was felt that Mr Jones had started the altercation by licking Mr Battersby’s face and that the kneeing was not “not done with any force or aggression”. As this happened at an MBNA event, it was concluded that the behaviour could have impacted the reputation of MBNA.

At the internal appeal, it was found that although there was provocation by Mr Battersby, it was not enough to justify a punch in the face.  The appeal officer himself felt that both Mr Battersby and Mr Jones should have been dismissed. He knew that Mr Battersby had not been dismissed and he had questioned this decision but this did not make him consider that dismissal was excessive in relation to Mr Jones.

Was this “disparate treatment” which meant that the dismissal of Mr Jones was unfair?

The ET considered the dismissal of Mr Jones to be unfair because there was inconsistency of treatment between Mr Jones and Mr Battersby by MBNA.

The EAT overturned this decision emphasising the “range of reasonable ways” in which an employer might react to the circumstances. The ET should have considered the question in relation to the employee whose case it is considering and commented that the “mere fact that the employer was unduly lenient” to another employee was “neither here nor there”.

The EAT emphasised that arguments about disparity of treatment must be considered with “particular care” and referred to previous case law which set out the following:

  1. If there is evidence that the employees have been led by their employer to believe that certain categories of conduct will be either overlooked, or at least will not be dealt with by the sanction of dismissal.
  2. If there is evidence about decisions made in other cases which supports an inference that the purported reason stated by the employer is not the real or genuine reason for the dismissal.
  3. If there is evidence as to decisions made by the employer in truly parallel circumstances which may be sufficient to support an argument that some other lesser penalty would be appropriate in the circumstances.

The conclusion of the EAT in relation to Mr Jones and Mr Battersby related to point number 3, i.e. whether a decision made in truly parallel circumstances made it unreasonable for an employer to dismiss.

Were the actions of Mr Jones and Mr Battersby sufficiently similar so that a disparity argument was appropriate? The EAT felt that they were not.  Mr Jones had attended an event, having been expressly told that MBNA’s disciplinary rules would apply, but punched someone in the face. Mr Battersby did not do this. The EAT described Mr Battersby’s conduct as “plainly reprehensible” but noted that he had not in fact carried out his threat in the workplace or elsewhere.

Had MBNA had reached a reasonable conclusion regarding Mr Jones, regardless of its treatment of Mr Battersby? Their conclusion was that as Mr Jones had not been “provoked beyond measure” and his conduct was gross misconduct, then it was reasonable for MBNA to dismiss him. The EAT overturned the ET’s finding of unfair dismissal.

Practical points to take from these decisions

  • Is your policy on fighting or other misconduct at workplace functions sufficiently clear in terms of likely sanctions?
  • Are employees aware of the policy?
  • Consider the circumstances carefully and carry out a thorough investigation.
  • Was the conduct sufficiently similar? Although the conduct may have arisen in the same incident, this fact alone will not be a conclusive indication that the circumstances are truly parallel (as it was not in the MBNA case).
  • Factors that are likely to be relevant when considering sanctions are length of service, previous disciplinary records and conduct, culpability and provocation.
  • Is there sufficient evidence pointing to culpability? In a case, like the London Zoo case, where there is a fight involving two employees but there is insufficient evidence to make any conclusive finding about, for example, culpability or to distinguish the conduct of the two individuals involved, it is likely to be outside the band of reasonable responses to dismiss one employee and not the other.

Whilst in many circumstances it will be reasonable for an employer to dismiss an employee for a fight in the workplace it is essential that you consider all the circumstances of a case, including who started the fight, the nature of the dispute, whether there were sufficient internal prohibitions on such behaviour and the extent of internal investigations. Although cases have shown that an employer may fairly dismiss all employees involved in a workplace fight without getting into the detail as to which employee was more culpable, each case will be facts specific and the evidence (and quality of that evidence) will vary. If you want to dismiss one but not another employee involved in a fight, you will need to be prepared to face arguments of inconsistent treatment and provide clear evidence of deliberation and reasoning.

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This guide is for general information and interest only and should not be relied upon as providing specific legal advice.  If you require any further information about the issues raised in this article please contact the author or call 0207 404 0606 and ask to speak to your usual Goodman Derrick contact.