ALL’S fair in love and law. In a recent Employment Appeal Tribunal (EAT) case, Mr Jones and his colleague, B, attended a work event at Chester racecourse.

They were told that normal work policies applied as did the usual standards of conduct, despite the fact that they were at an event.

During the event, Jones and B were seen messing around, which resulted in Jones punching B in the face.

After the work event, B sent Jones a number of aggressive text messages threatening violence, although nothing further occurred.

As a result of the incidents, Jones and B were subjected to disciplinary proceedings, given that their behaviour constituted gross misconduct.

The proceedings ended with Jones being summarily dismissed, whereas B received a final written warning for his conduct.

After his dismissal, Jones claimed unfair dismissal against his employer in the employment tribunal.

He won his claim.

The tribunal found that both Jones and B were guilty of acts of gross misconduct and there had been an unreasonable inconsistency of treatment between Jones and B.

This inconsistency made Jones’ dismissal unfair, the tribunal found.

However, the employer appealed the decision in the EAT.

The appeal was allowed.

It was allowed on the basis that when deciding unfair dismissal claims based on inconsistent treatment, the focus of the tribunal should be on the treatment of the person bringing the claim.

In this case, that was Jones.

If it was reasonable for the employer to dismiss Jones, then the simple fact that it was unduly lenient to B, was irrelevant.

This was the case because the EAT found that Jones’ misconduct of physically punching B was insufficiently similar to B’s misconduct concerning the sending of aggressive and violent texts.

If the gross misconduct of Jones and B had been sufficiently similar then it may have been unfair to have dismissed one and not the other.

* If you or your business is affected by this case, please contact Laura Roper, a solicitor in Porter Dodson’s employment law team, on 01823 625816 or laura.roper@porterdodson.co.uk.