UNFAIR DISMISSAL - 06.04.2006

Consistency of approach

Not on our time

In Enterprise Liverpool plc v Bauress and Ealey, two joiners, each of whom had three years’ service, were dismissed for gross misconduct - they’d been moonlighting. They denied the allegations, alleging that they had permission to be where they were at the time, but they were each dismissed following a disciplinary hearing. Their appeals against dismissal were also rejected.

The two then claimed unfair dismissal, alleging that there had been less favourable treatment than that afforded to a third employee (Mr Bracken). In similar circumstances he’d not been dismissed but given a final written warning. The employment tribunal agreed and held that the two had indeed been unfairly dismissed (although it reduced their awards by 75% for their contributory conduct).

Appealing times

The Employment Appeal Tribunal (EAT) disagreed and held that the dismissals were fair. They said the employer had not acted unreasonably because it had differentiated the case of Mr Bracken. Mr Bracken had a long and good service record (he’d worked for the employer for 30 years and had an unblemished record, whereas B and E had worked there for only three years and were just out of their apprenticeships). Mr Bracken had also readily admitted his wrongdoing whereas B and E had disputed their guilt and continued to lie.

Service counts. The EAT thought it reasonable for an employer to treat employees with vastly different lengths of service differently in the approach to disciplinary sanctions. It also thought it relevant for an employer to consider whether there had been an immediate admission of guilt by an employee, or the continual telling of lies.

In mitigation

This case makes it clear that whilst the general rule is that you should start by adopting a consistent approach in dealing with employees who are found guilty of committing the same offence, you can take account of their different circumstances, such as length of service, previous conduct and any admission of guilt.

Tip. Even if an earlier disciplinary case for the same offence was some time ago, make sure you know what penalty was awarded and why. This must be your “benchmark” in deciding on an appropriate disciplinary sanction for an employee. If you are then going to depart from this by imposing a harsher penalty, always ensure that you can justify this by reference to the clear differences between the two cases.

For example

The fact that one employee had five years’ service and the other six years’ is unlikely to justify disparity of treatment. But if the five-year service employee had a history of misconduct and poor performance and denied the allegations, whereas the six-year employee had a good service record and immediately admitted his wrongdoing, these differences might be sufficient to enable you to take the decision to commute a gross misconduct dismissal decision to a final written warning taking into account the mitigating factors.

The next step

For the case details visit http://personnel.indicator.co.uk (PS 08.07.03).