John Lewis plc v Coyne [2001] IRLR 139 EAT
The recent flurry of judicial activity on the scope of an Employment Tribunal's power to interfere with management decisions that are "within a band of reasonable responses" emphasises the difficulties for employees in unfair dismissal cases. But this heartening case illustrates the scope of protection from unfair dismissal in so-called misconduct cases.
John Lewis' disciplinary code was clear - dishonesty was considered as serious misconduct which normally led to dismissal. Employees were forbidden to use company telephones to make personal calls. If this regulation was breached and if the circumstances justified it, this could lead to dismissal.
Mrs Coyne job-shared at John Lewis with Mrs McMorrow. They often spoke on the telephone during the week to discuss work and they would have a chat as well. Mrs Coyne also used the office phone to ring her husband on a mobile, after she had had a miscarriage and was upset. She also used to ring a letting agency about difficulties with a house she was renting out.
Mrs Coyne was aware of the rules regarding personal calls, but not that this could be considered as dishonesty.
In June 1998, the departmental manager told the general manager that he believed she was making personal calls. He did not mention she had been suffering from personal problems. Following a printout of calls from her phone to Mrs McMorrow, the letting agency and her own mobile phone, the employers found that she had made 2.3 calls per week over a one year period lasting on average seven minutes each and costing 34p each. The majority of calls were to Mrs McMorrow.
She was suspended, disciplinary proceedings followed and she admitted making some personal calls but denied that all calls were personal. She offered to pay for the calls, but the general manager had already made his decision and she was summarily dismissed.
At the Employment Tribunal, her dismissal was held to be unfair - the employer should have investigated properly and not automatically dismissed Mrs Coyne. The employers appealed saying, as she had admitted making personal calls without permission, and not offered to pay for them until she was found out, her conduct was dishonest and there was no need for a warning or investigation.
The EAT held that using an employer's telephone for personal calls is not necessarily dishonest. They could not accept that Mrs Coyne's admitted conduct of making some personal calls and not offering to pay for them was, on any objective view, dishonest. There are two parts to dishonesty. Firstly, deciding whether according to the ordinary standards of reasonable and honest people what was done was dishonest and secondly, whether the individual realised what they were doing was, by those standards, dishonest.
In this case, it was not necessarily obvious that using the employers' telephone for personal calls was "dishonest", it depended on the circumstances and the employers had failed to investigate the question of her dishonesty. Furthermore, the disciplinary code did not indicate that dismissal was an inevitable consequence. The EAT found that the employers' procedures were not fair.