The work's do: love them or loathe them! As the festive season fast approaches, office Christmas parties abound. While the vast majority of employees will use it to harmlessly let their hair down, unfortunately for a small minority, the office party may represent trouble.

According to a survey by the Chartered Institute of Personnel and Development, punch-ups and threatening behaviour top the list of reasons for disciplinary action following the staff Christmas party. One in 10 workers know of someone from their organisation who has either been disciplined or sacked for inappropriate behaviour at the Christmas do.

When violence between colleagues does erupt, dealing with each participant fairly can be a difficult tightrope to walk for employers. Scenarios:

  1. Not such a fun family day

    Employer holds a 'family day at the races' to celebrate its 20th anniversary. Two colleagues started drinking early with a number of incidents described as 'fun/banter' apparently taken in good-heart throughout the day. Unfortunately, by the evening, the drink and 'banter' escalates to hostility culminating in Banker A punching Banker B in the face. In response, Banker B sends a number of threating texts that night.

    Following an investigation, the employer finds there had been no substantive provocation before Banker A punched Banker B and that the incident risked reputational damage to the Bank. As such, Banker A is dismissed for gross misconduct. As for Banker B, while the text messages were of an extremely violent nature, they were sent as an immediate response to having been punched. This too amounted to gross misconduct, however, the penalty given was a final written warning
     
  2. Battle of the zookeepers

    The meerkat keeper attends the Zoo's Christmas Party together with the llama keeper. Also attending is the llama keeper's former girlfriend, the monkey keeper. At the Zoo's party, a verbal confrontation initiated by the monkey keeper escalates to a physical fight, in which the meerkat keeper hits the monkey keeper in face with a wine glass resulting in a deep gash requiring hospital treatment.

    Following an investigation, the Zoo concludes the meerkat keeper struck the first blow, and caused a serious injury. She is therefore dismissed for gross misconduct. The monkey keeper is instead given a final written warning and banned from all future social events.

In both cases, the tribunals concluded that had the employers dismissed both employees for gross misconduct, then both dismissals would have been fair. However, there was an unreasonable inconsistency in treatment between the fight participants. There was thus a disparity of treatment which rendered Banker A and the meerkat keeper's dismissals unfair.

But were the tribunals correct in their strict insistence that both parties to a fight should face the same penalty? Well, no.

In MBNA Ltd v Jones, a recent case involving scenario (a), the Employment Appeal Tribunal (EAT) overturned the tribunal: when considering a claim of unfair dismissal based on disparity, the tribunal must focus on the treatment of the employee bringing the claim - if it was reasonable for the employer to dismiss this employee, the mere fact that the employer was more lenient to another employee is neither here nor there.

As the Court of Appeal held back in 1995 in Paul v East Surrey District Health Authority, it will be rare for a dismissal to be unfair on the basis of inconsistent treatment alone. When allegations of inconsistent treatment are made, the test for tribunals is to ask whether the employer's differential treatment of the employees was so irrational that no reasonable employer could have taken that decision. In the 2007 case of Epstein v Royal Borough of Windsor and Maidenhead, the EAT held that disparate treatment of two employees involved in the same incident did not render the employer's decision to dismiss only one employee "perverse or wrong", as long as the decision to dismiss was found to be within the reasonable band of responses.

In the MBNA case, it was not unreasonable for the employer to treat a deliberate punch in the face at the family day differently to the retaliatory texts sent thereafter.

As to the zookeeper scenario (b), an appeal to the EAT in the case of Westlake v ZSL London Zoo is currently pending. In light of the EAT decision in MBNA, the chances of a successful appeal are promising. The meerkat keeper has also subsequently received a criminal conviction in relation to the incident in a case branded as "menagerie a trois".

Should you be faced with having to deal with the aftermath of an office party brawl, you should consider the level of sanction that has been imposed on other employees in the company in similar circumstances and act consistently with previous decisions, unless there are material differences in the circumstances or offence.

Also remember, in advance of the party, provide a clear policy on the standards of behaviour expected at office parties and what kinds of behaviour are unacceptable and what the disciplinary penalties will be for breach of the rules, including possible summary dismissal if the offence is one of gross misconduct.