Veitch Penny LLP - Exeter | Crediton, Devon

Case

Dawes v Lidl Ltd
Employment Appeal Tribunal - (26 January 2006)

Issues

(1) Contract of Employment
(2) Wrongful Dismissal and Unfair Dismissal
(3) Reason for Dismissal

Facts

Mr Dawes was employed as a property executive with Lidl. His duties were concerned with identifying potential new sites for stores, liasing with local councils over planning applications and generally overseeing the acquisition of targeting land. Mr Dawes was dealing with an application for planning permission for a new store located in Launceston, Cornwall. One particular councillor, Councillor Chapman, was in favour of the proposed plan. The councillor asked Mr Dawes if Lidl would be prepared to sponsor a charity firework display he was organising, with the suggestion that this would allow Lidl to advertise at the event.

Mr Dawes spoke to both his manager and senior manager regarding the proposal and they gave their agreement. However, he was then instructed not to put their commitment to the sponsorship in writing in the event it could be misconstrued. However, some time later Mr Dawes wrote to Councillor Chapman confirming the arrangement.

Later that year the councillor attended a meeting of the planning committee and spoke in favour of the planning application without revealing his interest in it. His failure to disclose the interest was discovered and the decision revoked. Lidl then took disciplinary proceedings against Mr Dawes alleging that he was guilty of gross misconduct by his refusal to obey the instruction not to write the letter. Following disciplinary proceedings, Mr Dawes was dismissed.

Mr Dawes then brought a claim of unfair dismissal and wrongful dismissal at the Employment Tribunal. He alleged that he had forgotten about the instruction due to pressure of work and argued it was an administrative oversight. However, the Tribunal took the view that the act could not be considered to be a simple error. Whilst there was no evidence of malice, the tribunal felt there was a very clear breach of a clear instruction from Lidl. The Tribunal went on to find that the approach by Lidl was harsh but they could not say that no reasonable employer in those circumstances would have dismissed on those grounds. Mr Dawes' claims were dismissed.

Mr Dawes appealed to the Employment Appeal Tribunal (EAT).

Decision

Mr Dawes appeal was successful. The EAT found that the first tribunal had failed to address the fundamental question of whether Dawes had written the letter absent-mindedly. In the EAT's judgment they found it difficult to say that a letter written absent-mindedly was a flagrant refusal to obey a reasonable instruction. It might have amounted to negligence but that was not the basis upon which the dismissal was made. The matter was then remitted to be heard by a different tribunal.

Comments

This case highlights that an employer can dismiss for a first offence where an employee is guilty of gross misconduct, but the employer must adhere rigorously to any disciplinary policy and the statutory disciplinary procedure. It is interesting to note that the issue of whether the particular instruction was a "reasonable instruction" was not raised.

Rachel Billen - Associate Solicitor, Commercial Department at Veitch Penny.
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