Veitch Penny LLP - Exeter | Crediton, Devon

Case

Enterprise Liverpool Plc -v- Mr Bauress (1) and Mr Ealey (2)
Employment Appeal Tribunal (13th January 2006)

Issues

(1)Unfair Dismissal
(2)Misconduct
(3)Range of Reasonable Responses

Facts

The Claimants Bauress and Ealey were employed by Enterprise Liverpool Plc ("Enterprise") as joiners and both had 3 years continuity of service. They were caught working for someone else during working hours using Enterprise's vehicle and materials for their own benefit. When challenged, they initially denied the offence and then lied by saying they had been given permission despite strong evidence against them. Following an investigation, both were dismissed. They appealed unsatisfactorily arguing they had been less favourably treated than Mr Bracken. He was another employee who had only received a final written warning for similar misconduct.

When their internal appeal was unsuccessful, they made a claim in the Employment Tribunal for Unfair Dismissal.

At first instance, the Tribunal concluded that Bauress and Ealey had been unfairly dismissed because Enterprise had acted unreasonably by not treating them in the same way as Mr Bracken. However, it also reduced the Claimant's compensation by 75% for contributory fault. The employer then appealed to the Employment Appeal Tribunal (EAT).

Decision

The appeal was allowed and the Tribunal's decision was overturned. In Mr Bracken's case, he had immediately admitted his guilt whereas Bauress and Ealey had continued to lie. Mr Bracken had a good disciplinary record and 30 years' service in comparison with the claimant's. The EAT was of the view that it was reasonable for Enterprise to take the distinguishing features into account when reaching its decision to dismiss the claimants.

Comments

This case serves as a useful illustration of the care an employer should take in misconduct cases to ensure consistency of treatment. Giving different sanctions to employees who are guilty of the same misconduct is normally considered to be unfair. However, in this case the EAT confirms that there may be circumstances where it may be reasonable to distinguish similar cases. This would be dependent on the facts on each case.

Rachel Billen – Associate Solicitor, Commercial Department at Veitch Penny.
Tel: 01392 278381, Fax: 01392 410247, Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it