Work and drink - never a sensible mix. The employer in this GB Employment Appeal tribunal case was celebrating its 20th anniversary with a night at Chester racecourse. Mr Jones and a colleague, Mr Battersby, had been drinking beforehand and engaged in some "fun/banter", which escalated into the less funny punch in the face by Mr Jones on Mr Battersby. Mr Battersby later responded by sending Mr Jones threatening texts.

After an investigation, the employer dismissed Mr Jones but gave Mr Battersby a final warning. Mr Jones claimed unfair dismissal, saying the disparate treatment rendered his dismissal unfair. The original tribunal agreed - both incidents constituted gross misconduct and therefore both should have been dismissed or not, thought the tribunal. 

The EAT has upheld the employer's appeal - the circumstances were not similar (punching someone and sending emails are not the same thing and therefore the cases should not have been compared by the tribunal). The tribunal had mis-read the meaning of Hadjioannou v Coral Casinos Ltd [1981] IRLR 352. 

Hadjioannou is important in comparative cases in relation to disciplinary penalties - but it has its limits. The EAT in this case set out the following from that earlier EAT case in relation to comparators in disciplinary cases:

"24. ... Firstly, it may be relevant if there is evidence that employees have been led by an employer to believe that certain categories of conduct will be either overlooked, or at least will be not dealt with by the sanction of dismissal. Secondly, there may be cases in which evidence about decisions made in relation to other cases supports an inference that the purported reason stated by the employers is not the real or genuine reason for a dismissal. … Thirdly … evidence as to decisions made by an employer in truly parallel circumstances may be sufficient to support an argument, in a particular case, that it was not reasonable on the part of the employer to visit the particular employee’s conduct with the penalty of dismissal and that some lesser penalty would have been appropriate in the circumstances."

Mr Jones' case may have fallen into this third category - but there were not 'truly parallel circumstances'. Without those circumstances, the tribunal should have focussed on Mr Jones' own wrong-doing and not that of his putative comparator. Punching another employee was, in itself, quite clearly a gross misconduct offence. The action taken against Mr Battersby by the employer for his offence is neither here nor there - it was wrong for the tribunal to compare the outcomes because the circumstances were not parallel. 
http://www.bailii.org/uk/cases/UKEAT/2015/0120_15_0109.html