This case provides a useful reminder that dismissals for repeated minor matters of conduct can be justifiable, even if the employer’s disciplinary policy is not clear.
In a recent ruling, the Employment Appeal Tribunal (EAT) found that an employee had been fairly dismissed for persistent lateness – even though she was only late by ‘one or two minutes’ on the majority of occasions.
Ms Tijani worked as a cleaner at the House of Commons for nearly four years. In December 2017, she received her first written warning after arriving late to work on 17 out of 20 days. She continued to arrive late to work. Although some of the periods of lateness were short (by only two minutes), others were much longer (up to 44 minutes). An investigation later found that Ms Tijani arrived to work late over 50 times within a period of six months. As a result, she received a final written warning a few months later and was subsequently dismissed in May 2019.
Ms Tijani brought a claim in the employment tribunal (ET) for unfair dismissal. The House of Commons Commission relied on Ms Tijani’s conduct (ie lateness) as a fair reason for her dismissal. Ms Tijani 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. Ultimately, the ET rejected Ms Tijani’s claim, finding that the House of Commons Commission had acted reasonably in saying ‘enough was enough’ with regard to her persistent lateness.
Ms Tijani appealed to the EAT. She complained that her employer did not produce a disciplinary policy in evidence before the ET. Without a disciplinary policy, it can be difficult to measure the nature and extent of misconduct and formulate an appropriate range of responses to this. The EAT concluded that this was unfortunate; however, Ms Tijani was on her final warning for lateness. She was well aware that dismissal was the likely consequence of her ongoing lateness but she continued to arrive late. In such situations, the employer should not have to prove that the employee’s lateness was having a ‘special knock-on effect’ on the business. Accordingly, the EAT found that Ms Tijani had been fairly dismissed, and rejected her appeal.
Employers should have confidence in exercising disciplinary sanctions, including dismissals, for even minor misconduct where it is repeated. However, prudent employers will have a disciplinary policy which sets out a non-exhaustive list of examples of misconduct, and the relevant sanctions, and produce this during the course of any disciplinary proceedings or litigation.