When more than one employee is alleged to have committed gross misconduct but only one is dismissed

In MBNA Limited v Jones UKEAT/0120/15 the EAT has revisited the guidance found in Hadjioannou v Coral Casinos Ltd [1981] IRLR 352 on when it is appropriate to consider disparity of treatment between employees in similar circumstances. In this case, two employees had been found guilty of gross misconduct for their involvement in the same incident, although one was dismissed and the other was not.

The EAT clarified that in such cases, the relevant question is still whether the employer has acted reasonably towards the employee who has been dismissed, regardless of what sanction has been applied to the other.

We have dealt with cases such as this before when an employer takes the decision to provide warnings to some employees (or let them off completely) but dismiss others. The recent case now means that if one employee has been dismissed and the other has not, the disparity of treatment will occasionally be relevant to reasonableness, but the EAT has held that the circumstances need to be "truly parallel".


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