Greetings , the passing of Halloween means it is now officially acceptable to start talking about Christmas. The nature of employment law means it seldom overlaps with festive revelry, however, there is one issue that does often crop up. Staff conduct at office parties. Therefore today’s case is about what to do when staff misbehave at work functions.
The questions this week are:
If two employees are involved in a physical altercation can different disciplinary sanctions be given?
To what extent does provocation mitigate a gross misconduct offence?
The Claimant, Mr Jones, worked as a collections officer for the Respondent, MBNA. The Respondent, a bank, was hosting a party to celebrate its 20th birthday. Staff were told in advance that it was a work event and normal behaviour standards apply.
Two of the Respondent’s employees drank before the event, one of them was the Claimant and the other was a Mr Battersby. At the event the Claimant licked Mr Battersby’s face and in return he kneed the Claimant in the back of the leg. This was done in jest and written off as ‘banter’. Later on in the evening the Claimant had his arm around Mr Battersby’s sister. Mr Battersby spotted this and once again kneed the Claimant in the back of the leg, this time giving him a dead leg. The Claimant then turned around and punched Mr Battersby in the face.
The Claimant and other members of staff then proceeded to a night club. Mr Battersby knew the Claimant was there and waited outside for him, he then proceeded to text the Claimant with numerous threatening messages including ‘I am going to rip your f****** head off you b******’ (apologies for the effing and jeffing but these are the facts of the case). The Claimant did not receive the messages until after he left the venue, by which point Mr Battersby had gone home. The Respondent began disciplinary proceedings against both the Claimant and Mr Battersby. Following disciplinary investigation the Claimant was dismissed for gross misconduct but Mr Battersby was given a final written warning.
The reasoning for the different sanctions was that Mr Battersby had been provoked by the Claimant licking him and also by the Claimant being over familiar with his sister. The Claimant bought an unfair dismissal claim before tribunal. The ET ruled that the dismissal was unfair as the Respondent had used different provocation tests, the Claimant had also been provoked by the dead leg, and this amounted to an unreasonable disparity of treatment between the two employees.
The Respondent appealed and the EAT accepted this appeal stating that the circumstances surrounding each employee’s conduct was different and thus it was reasonable to reach different decisions. It also stated that the punch happened in the workplace whereas the texts did not.
The takeaway points from today are if two employees are involved in a fracas at work then they could both receive different disciplinary sanctions. This could be down to a number of different factors including: disciplinary records, self-defence or provocation. Provocation can be used as a distinguishing reason as many employees would not get involved in such situations had certain events not already transpired.
We always advise employers to give advanced warning about party behaviour being liable to disciplinary action. For further advice on office parties click here.