Unfair Dismissal – November 2022
Can continued lateness justify dismissal? The EAT in Tijani v The House of Commons Commission held that it could. The employee had been a cleaner at the House of Commons since June 2015. She was given a first written warning in December 2017 for being late 17 out of 20 days. She got a final written warning, to stay in place for 24 months, for continued lateness in April 2018. The employee didn’t appeal and was told that further absence could result in dismissal. She was still frequently between 2 and 33 minutes late - 43 more times by January 2019 and 7 additional late arrivals before the formal process began. The employee was dismissed. She appealed, but the appeals officer said her record showed no significant improvement even discounting the times when she was late by only a couple of minutes. The appeal failed.
She brought a claim for unfair dismissal and lost. She appealed to the EAT, saying that the Tribunal had not seen a copy of the employer’s disciplinary policy during the original 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 not well informed and speculative. 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.
The EAT disagreed. With regard to inconsistent treatment, the Tribunal asked the employee to name a colleague with a similar record of lateness who had not been dismissed – but the employee had not provided any names. The Tribunal had seen evidence that six other cleaners had not been dismissed because their attendance had improved, evidence that the employee had not challenged. The Tribunal was entitled to conclude that lateness was a conduct issue. Despite the unfortunate absence of the disciplinary policy during the Tribunal process, the Tribunal was entitled to find that the dismissal was fair given the sheer number of absences, the final written warning and the employee’s knowledge that further lateness could result in her dismissal. The employer did not need to show any ‘damage’ to the business as a result of the lateness - the lateness itself was enough. The EAT agreed that employees should not only show up on time but also be ready to start work on time.
This case highlights the importance of two things in conduct proceedings: following a fair procedure (warnings, appeals etc) and treating employees consistently. In this case, the employer not only got this right but had the evidence to show it. The absence of the disciplinary policy in evidence was irrelevant here. However, having a clear policy on lateness, and the potential sanctions for continued lateness, ensures employees understand not only the rules, but the potential consequences if they don’t stick to them.
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