The EAT has handed down a judgment (worth reading for the gentle lampooning of Liverpool in the opening paragraph!) dealing with disparity of treatment between employees when dismissing.
It is well established that a dismissal is likely to be unfair if the employer has not dismissed employees for similar offences in the past, unless there is justification for departing from past practice.
In Enterprise Liverpool plc v Bauress, two joiners (both recently out of their apprenticeships) used their employer's van and materials to moonlight during working hours, when they should have been undertaking works for their employer. They were both dismissed.
The tribunal noted that an employee had previously not been dismissed for the same offence, and therefore declared the dismissals unfair (reducing compensation by 75% for contributory conduct).
The EAT (HHJ McMullen presiding) overturned this decision. The EAT pointed to two differences between the previous employee (who was given a final written warning) and the two employees who had been dismissed. First, the previous employee had admitted his guilt, whereas the two new employees had lied about it. Second, the previous employee had 30 years' service, whereas the two new employees were just out of their apprenticeship.
The EAT held that it fell within the band of reasonable responses to regard these as distinguishing features, and quashed the tribunal's declaration that the dismissal was unfair.
Enterprise Liverpool plc v Bauress