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Tags: sickness absence, unfair dismissal
Categories: Employment Law
Yes, says the EAT in Tijani v The House of Commons Commission (available here).
Background: If an employee has two years service, a dismissal will only be fair where employer can show that:
In conduct cases, a dismissal will be only be fair if the employer can show they had genuine belief in the employee’s guilt based on a reasonable amount of investigation and having followed a fair procedure.
Facts: The employee, Ms Tijani, was a cleaner at the House of Commons from June 2015 until her dismissal in May 2019.
In December 2017 the employee was given a first written warning after arriving late to work on 17 out of 20 days. However, she continued to arrive late to work – over 50 times within 6 months. Although on a number of these occasions she was only late by a couple of minutes, others were much longer (up to 44 minutes). The employee was given a final written warning; to remain in place for the next two years. The employee did not appeal the decision. However, over the next 8 months, she was late another 43 times (varying between 2 and 33 minutes late). The employer dismissed her and although this time the employee did appeal against this, the employer upheld the dismissal.
The employee brought a Tribunal claim for unfair dismissal. She argued that her dismissal was a disproportionate approach to lateness of ‘just a couple of minutes’ and that her employer should be required to demonstrate the impact her timekeeping had on the business.
Tribunal decision
The Tribunal dismissed the employee’s claim. It said that the employer had acted reasonably in saying ‘enough was enough’ with regard to her persistent lateness.
The employee appealed. She said that the Tribunal had not seen a copy of the employer’s disciplinary policy during the hearing and therefore could not measure the nature or extent of the misconduct or the appropriate range of sanctions. She also said that the Tribunal’s conclusion that poor timekeeping was generally a misconduct issue was wrong. She said the Tribunal had not properly considered her arguments about inconsistent treatment compared to other employees who had not been dismissed for their lateness.
EAT decision
The EAT dismissed the appeal.
Although it was unfortunate that the Tribunal had not seen the disciplinary policy, it was still entitled to find that lateness was a conduct issue. Ultimately, the employee knew that the employer considered her lateness to be misconduct and that she was on her final warning and that dismissal was the likely consequence of her lateness continuing. Despite this, she continued to arrive late.
In respect of the employee’s arguments about inconsistent treatment, the Tribunal had seen evidence that six other cleaners had not been dismissed because their attendance had improved. This evidence was not challenged by the employee and she had been unable to name anyone who had a similar record to hers and been retained.
Given the sheer number of absences and the final written warning, the dismissal was fair. The employer did not have to prove that the employee’s lateness was having a ‘special knock-on effect’ on the business. Particularly given that the employee was in a time critical role as the employer needed to deliver its cleaning service before MPs arrived for work.
Implications:
This decision is helpful for employers as it acknowledges that persistent lateness can be highly disruptive for businesses and comforts employers that they are entitled to take persistent lateness seriously (even if on some occasions it is only by a couple of minutes).
However, if employers do want to dismiss for lateness, do follow a fair procedure (preferably that set out in the disciplinary policy) and treat employees consistently. It is particularly important to explore the reasons for their lateness with the employee and help to address any relevant issues – consider reasonable adjustments where required.
Also, be particularly careful if the employee is not in a time critical role – the Tribunal and EAT may well have come to a different conclusion had the employee been able to make up work by staying late or there was more scope for flexibility in the role.
Finally, if worse comes to worst and it does all end up at Tribunal, do remember that the disciplinary procedure or policy will be relevant to the issues in the case and should be disclosed. That said, it is unlikely to be fatal to your defence.
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