Treatment of employees in ‘truly parallel circumstances’

The Employment Appeal Tribunal (EAT) has clarified previous guidance relating to cases where employees involved in similar acts of misconduct are treated differently by employers; most commonly where one employee is dismissed and the other is not.  It has been confirmed that the relevant question is still whether the employer has acted reasonably towards the employee who has been dismissed irrespective of what action has been taken against the other employee. Whilst the disparity between the treatment of the two employees will sometimes be relevant when assessing whether the employer acted reasonably, the circumstances will need to be what the Employment Appeal Tribunal called ‘truly parallel’.

One consideration in an unfair dismissal case involving alleged disparity of treatment involves the previous actions of the employer and how employees involved in similar situations or have been guilty of similar misconduct have been disciplined and sanctioned. Where one employee is dismissed and the other is not for the same misconduct, the dismissal will only be unfair if the employees had been led to believe that the employer would overlook such behaviour or at least not dismiss the employee for such behaviour, or where the misconduct was not the real reason for the dismissal.

In the recent case an incident occurred at an event arranged by the employer outside of the work place. Following a verbal altercation, one employee “kneed” another and was punched in retaliation. The employee who kneed the other later sent the other seven texts threatening violence. He did not, in fact, take any further action.

Whilst the employee who punched the other was dismissed, the second employee was given a final written warning for sending the violent text messages. The employer took the view that although he had kneed his colleague, this was not done with force or aggression and was not sufficiently provocative for his colleague to react by punching him. The employer felt that the text messages were Mr an immediate response to being punched; in other words he was provoked.

The dismissed employee brought a claim for unfair dismissal. Having initially won his case, the matter eventually reached the EAT, who held that the dismissal was fair. In some circumstances, the disparity between the treatment of employees is a relevant factor to be considered, however the tribunal must look at the guidance in previous cases carefully. Where employers treat employees in ‘truly parallel circumstances’ differently, it may be unreasonable but not always.

Employers should be mindful of the test for unfair dismissal and in circumstances where employees are in similar circumstances and are treated differently. Employers need to be conscious that they take a consistent approach towards employee misconduct, though the mere fact that two given employees are treated differently is unlikely to be a reason for unfair dismissal on its own unless the circumstances are ‘truly parallel’.