After they both consumed alcohol, Mr Jones punched Mr Battersby in the face. Mr Battersby subsequently texted Mr Jones more than once threatening, amongst other things, to “rip [his] f***ing head off”. These threats were not actively pursued by Mr Battersby.
A disciplinary investigation followed – the employer dismissed Mr Jones, but issued Mr Battersby with a final written warning.
The Employment Tribunal concluded Mr Jones had been unfairly dismissed, based upon the inconsistent treatment he received in contrast to Mr Battersby. The EAT disagreed – the Employment Judge had not properly applied the test set out in section 98(4) of the Employment Rights Act 1996, in terms of the “range of reasonable responses” test. He had also failed to apply the test in Hadjioannou v Coral Casinos Limited, and, in particular, failed to consider whether there was a decision made in truly parallel circumstances which made it unreasonable for the employer to dismiss the employee.
The Employment Judge had not, for the purposes of a disparity argument, drawn a distinction between a deliberate punch in the face and a threat afterwards that was never actively pursued. If he had, he would have been bound to conclude the circumstances were not truly parallel.
Here is a link to the EAT’s judgment.
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