Enterprise Liverpool Ltd v Bauress & Ealey

Same misconduct, same sanction?

Enterprise Liverpool Ltd v Bauress & Ealey, EAT, 30 January 2006

Facts Mr Bauress and Mr Ealey were employed by Enterprise as joiners. Each had three years’ service, and both were caught moonlighting during their working hours using Enterprise’s van and materials. They initially denied the offence and then lied by saying they had been given permission. Following an investigation, both were summarily dismissed for gross misconduct. They appealed, arguing that they had been less favourably treated than Mr Bracken – another employee, who had only received a final written warning for similar misconduct in the past.

Decision The internal appeal was unsuccessful, so they took their case to the employment tribunal, which concluded that Bauress and Ealey had been unfairly dismissed. Enterprise had acted unreasonably by not treating them in the same way as Bracken. Enterprise appealed to the Employment Appeal Tribunal (EAT).

Appeal The EAT overturned the tribunal’s decision. Bracken had admitted his guilt, whereas Bauress and Ealey had continued to lie. He also had 30 years’ service in comparison to Bauress and Ealey’s three years. It had been reasonable for Enterprise to take these distinguishing features into account when deciding to dismiss the two men, rather than treat them in the same way as they had treated Bracken.

Comment Giving different sanctions to staff who are guilty of the same misconduct would appear to be unfair. But there are circumstances when it is reasonable to do so.

In this case, it was reasonable for the employer to regard length of service and admission of guilt as distinguishing features when deciding to dismiss two relatively junior employees who had denied their guilt – despite solid evidence against them – rather than giving them final written warnings (as had previously been given to a long-serving employee, who had immediately admitted to his wrongdoing).

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