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“I had two employees who were out on a works-organised drinks evening and, unfortunately, there was a fight between them. Both of them had been drinking. My Sales Manager (John) punched the Sales Executive (Jason) in the face. Jason had been goading him, however, and was then threatening afterwards that he was going to follow John and beat him up (although he never actually did so, after he sobered up). Should I dismiss them both and what are the risks if I only dismiss John, as he threw the punch?”
Good news for the employer
The first point to make here is that the risk for the employer of claims greatly increases if he either employees has close to, or over, 2 years’ service. Normal unfair dismissal rights apply a week below the 2 years. If both employees here have short service, then there is a fair degree of latitude for the employer to do as they choose, and they could certainly decide to dismiss neither, both, or only one of the employees.
In such situations a basic paper-trail would still be advised, with an invitation to a disciplinary hearing setting out the charges and a right to be accompanied at the hearing. The disciplinary case should be put to the employees at the hearing, minutes are taken and then a decision is given in writing with a right of appeal. If the employer determined this to be gross misconduct then of course there would also be a good case to summarily terminate, i.e. without any notice payable.
More good news for the employer
If either John or Jason had the right to claim unfair dismissal, however, and had over 2 years’ service, then a certain degree of consistency of treatment must be applied. That said, case law has established (and a recent case this month MBNA Ltd vs Jones has confirmed) that, provided there are factual differences relating to the acts of the employees in question, then it won’t be an unfair dismissal if the employer applied their minds to the facts and could make distinctions between the degree of culpability.
In the above situation, the fact that one threw the physical punch would be enough. Tribunals are not supposed to be second guessing the reasonable decisions of the employer, provided that reasonable decisions are made on the facts, after a reasonable investigation and a fair procedure.
Of course, there are some circumstances in which these circumstances are truly parallel, in which case it could be unreasonable for one employee to be dismissed and the other to be given a warning. Those cases are rare however and generally an employer is entitled on the facts to decide, within a band of reasonable responses, the disciplinary sanction applicable.
However: Beware discrimination, whistle-blowing and raising statutory rights
It is still of course possible for an employee, regardless of length of service, to claim that the disparity of treatment is not on the facts of the incident, but motivated by some form of whistle-blowing or discrimination or because they raised certain statutory rights. If that was the case, then it can give still rise to a Tribunal claim, hence the advantage (even with employees who have under 2 years’ service) of following a fair procedure and laying a careful paper-trail, documenting the facts that led to distinctions in disciplinary outcomes.
Andrew Macmillan, Solicitor, Motor Industry Legal Services