Not necessarily, held the EAT in MBNA Limited v Jones.
Two employees were at a corporate social event, before which they had been warned that normal standards of behaviour and conduct would apply. But the two began drinking and fell out. Mr Jones punched a Mr Battersby in the face. In turn, later on, after the event, Mr Battersby texted Mr Jones on a number of occasions threatening, inter alia, to "rip your f*ing head off". He never carried out his threats.
A disciplinary investigation ensued with charges brought against both. The outcome was that Mr Jones was dismissed for his behaviour but Mr Battersby was given a final written warning.
In the unfair dismissal case brought by Mr Jones the employment tribunal considered his dismissal to be unfair because of the inconsistency of treatment between the two. On appeal the EAT overturned this decision. The Employment Judge had not applied the test set out in section 98(4) of the Employment Rights Act 1996, which requires recognising that there may be a range of reasonable ways in which an employer may react to the circumstances which give rise to the dismissal. He had also failed to apply the test in Hadjioannou v Coral Casinos Limited, and, in particular, failed to consider whether there was a decision made in truly parallel circumstances which made it unreasonable for the employer to dismiss the employee.
In the present case the Employment Judge had not expressly, for the purposes of a disparity argument, drawn a distinction between a deliberate punch in the face at what was designated to be a workplace and a threat afterwards that was never carried out. If he had, he would have been bound to conclude the circumstances were not the same.