Disciplinary Outcome: two employees; same offence; different sanctions

Home ADVICE & GUIDANCE Disciplinary Outcome: two employees; same offence; different sanctions

There are a range of sanctions that at the end of a disciplinary process can be imposed on an employee, they range across letter of concern, verbal warning to more severe sanctions including dismissal or demotion.

When faced with disciplining an employee the chair of the disciplinary meeting needs to make a decision on the evidence before them in the context of the situation. One of the first steps is to consult the employer’s policies and procedures, often found in the employee handbook.

The handbook can set standards for employees as well as give an indication as to what sanctions certain misdemeanours or offences carry, just like sentencing guidelines for criminal offences.

Sanctions can vary from employer to employer as there might be a particular act or omission by the employee that is particularly crucial in your businesses or industry and hence a harsher sanction could be issued. However this should be explained and clearly set out in your policies and procedures.

What if there are two employees who commit the same offence;
do you have to give them both the same sanction?

This depends on the offence and the circumstances, are they the same or just similar. The ACAS Code of Practice in Disciplinary and Grievance Procedures details that employees should be treated consistently. Inconsistent treatment could lead to an employment tribunal where one employee claims that they have been treated unfairly as they have received the harsher sanction of the two.

It is also important to consider if this offence has happened previously within the business and how it was dealt with at that time. There is the possibility that a precedent has been set with certain offences. If you usually issue verbal warnings for multiple lateness’s then why do you now want to issue a written warning to a different employee?

This problem has been the subject of many employment tribunal cases and predominantly when either;

  • There are two employees involved in the same incident; or
  • There are two employees involved in separate incidents but the incidents are same/similar in nature

Two Employees; Same Incident

In MBNA Ltd v Jones [2015] UKEAT/0120/15/MC at an extended work event at Chester Racecourse where the employer had warned that normal standards of behaviours and conduct in accordance with the office standards would apply, there was a violent incident between two employees. Both had been drinking and an argument escalated with Mr J punched Mr B in the face. Outside of work Mr B later sent several threatening text messages, threatening violence, but did not carry out the threats. Both faced disciplinary proceedings;

  • Mr J was dismissed
  • Mr B was issued with a final written warning.

The Employment Appeal Tribunal (‘EAT’) determined that although the sanctions were different despite both employees being involved in the same incident it was not unfair to dismiss Mr J. The Judge recognised key differences in the actions of both employees. One had committed acts of violence one had threatened acts of violence. One had committed an act of violence whilst in work. One had made threats of violence outside of work. Although Mr B’s actions are reprehensible there is a distinction between his actions and those of Mr J.

In contrast but keeping to the theme of extended work events or work parties, in Westlake v ZSL London Zoo ET/2201118/2015 two zookeepers got into a fight over the affections of a third zookeeper at a Christmas party. The evidence suggested both were involved in the fight. One of the fighting zookeepers was dismissed but the other was not. It was difficult to determine who started the fight as there were no witnesses and the dismissal of one zoo keeper was unfair as the tribunal determined both were culpable.

Two Employees; Different incident but similarities in nature

Enterprise Liverpool plc v Bauress and Ealey [2006] UKEAT/0645/05/MAA. Two joiners, both just out of their 3 year apprenticeships had been seen and approached by a manger as they were working at a location the employer had not sent them to, they were doing a ‘foreigner’. This had happened before, in an unrelated event, a third employee of 30 years’ service had previously been given a final written warning after admitting to undertaking a foreigner. The two joiners denied they were undertaking a foreigner, they claimed to have been given permission and persisted to deny the allegation through the disciplinary process. The two joiners were dismissed and complained that they were treated unfairly as a third joiner was not dismissed. The tribunal agreed that length of service, early admission of guilt compared to denial and lies were relevant considerations for an employer and the dismissal was not unfair.

Do & Do not;

  • Do have written policies and procedures setting out acceptable and unacceptable behaviour and rules, and the consequences if they are broken, like the company may take disciplinary action that could result in dismissal from the company
  • Do fully investigate matters
  • Do send a written dismissal letter detailing the reason(s) for the sanction/dismissal
  • Do not forget to consider the key evidence and merits of the case as well as considerations like mitigation, provocation or an early admission, length of service.Do not fail to maintain consistency when applying sanctions
  • Do not prejudge the outcome or consider affording different sanctions in parallel circumstances

It is okay to, following a reasonable investigation in the circumstances and if as the employer you discover that the underlying facts and circumstances are not similar, decide to dismiss one employee and not another. If the investigation details that the circumstances are parallel then consistency is key.

Careful consideration will be required and an employer can detail and document what has been considered in the dismissal letter. Distinctions can be made in terms of mitigation, aggravating factors, length of service and previous disciplinary record but again findings and decision should be documented adequately as they may be scrutinise by the employment tribunal.

author avatar
Elena Boura