M Dawes v Lidl Ltd, EAT, 26 January 2006

Failure to follow instruction is gross misconduct
M Dawes v Lidl Ltd, EAT, 26 January 2006

Background

Mr Dawes was a property executive with Lidl, whose job involved identifying new sites for stores and liaising with local councils over planning applications.

When dealing with one application in Cornwall, Dawes was asked by a local councillor if Lidl would be prepared to sponsor a charity firework display at a cost of £1,000. Dawes sought the advice of his managers, who agreed to the proposal. Dawes was instructed that he should not put the company’s commitment to giving the money in writing in case it could be misconstrued. Nevertheless, Dawes confirmed in writing the company’s donation. This fact became known to Lidl, which subsequently took disciplinary proceedings against Dawes, asserting that he was guilty of gross misconduct under his contract. Gross misconduct was defined in Lidl’s disciplinary policy as a “flagrant refusal to obey a reasonable instruction”. Dawes claimed that it was an administrative oversight on his part by reason of pressure of work, but he was dismissed without notice for gross misconduct. Dawes subsequently claimed unfair and wrongful dismissal.

Decision

The tribunal dismissed his complaints. It regarded the company’s approach as harsh, but could not say that any reasonable employer in those circumstances would have dismissed on those grounds. The tribunal accepted there was no evidence of malice on Dawes’ part, but it found that there was a clear breach of a very clear instruction.

Appeal

Dawes successfully appealed. The tribunal had failed to address the fundamental question of whether Dawes wrote the letter absent-mindedly. The EAT said that, if he had done so, then it would be difficult to conclude that this was a flagrant refusal to obey a reasonable instruction. The case was sent for rehearing.

Comment

An employer can dismiss for a first offence where an employee is guilty of gross misconduct. However, it must adhere rigorously to any disciplinary policy. It appears that the question of whether the instruction in this case was a reasonable one was not raised before the tribunal.