J and B both got very drunk and had an argument which culminated in J punching B in the face. B then sent J a number of threatening texts including that he would “rip your **** head off”.
Disciplinary proceedings were instigated against J and B. However, while J was dismissed, B was given a final written warning.
At the employment tribunal, J argued that the inconsistency of the treatment rendered his dismissal unfair. The tribunal agreed with him.
The EAT overturned the tribunal’s decision. The Employment Rights Act 1996 recognises that there may be a range of reasonable ways in which an employer may react to the circumstances. It was within the range of reasonable responses to dismiss both or one, or to give both a final written warning. The employer was also entitled to treat their conduct as not being of the same level of seriousness and to act accordingly.
So what lessons can we learn?
- Even though something happens outside of work, an employer is entitled to take disciplinary action.
- When looking at the penalty for misconduct there may be a range of reasonable options open to the employer. So long as the chosen penalty falls within that range, the resultant dismissal will not be unfair.
- Employers may be held responsible for the misconduct of their employees outside of work – this could cover matters such as harassment, assault and drunk driving.
- Employers may be responsible for the health and welfare of their employees at social functions. This is especially relevant in the case of underage staff and drinking.
- Christmas will bring out endless doom and gloom stories about the perils and pitfalls of parties, however a little thought and planning can avoid an employer turning into Ebenezer Scrooge.
This is intended for general information only and should not be considered as giving advice in relation to any individual case nor be taken as applying to any particular case. No liability is accepted for any such use of the information contained.