Fair dismissal for persistent lateness

The Employment Appeal Tribunal recently held that a dismissal for persistent lateness was fair, even though in a number of instances, the employee had only been a couple of minutes late. Stuart McBride considers this decision and what it means for employers.

Where an employee has the qualifying period of service (in most cases two years, or just one year in Northern Ireland), a dismissal will only be fair where employer can show that:

1. the reason for the dismissal is one of five potentially fair reasons, one of which is ‘conduct’; and
2. that in all the circumstances (including the employer’s size and administrative resources) the employer acted reasonably in treating that reason as a sufficient reason for dismissal.

Facts

In Tijani v The House of Commons Commission [2022] EAT 104 Miss Tijani had worked as a cleaner at the House of Commons Commission (HCC).  Following a first written warning for lateness in December 2017, she received a final written warning in April 2018 lasting for 24 months. It was made clear to Miss Tijani that if her timekeeping didn’t improve, she might be dismissed.  Miss Tijani didn’t appeal the final written warning.

Miss Tijani continued to be late by between 2 and 33 minutes. A disciplinary hearing took place on 15 April and she was then dismissed. The dismissal letter cited the live final written warning and approximately 50 occasions of lateness since that warning had been imposed.

Miss Tijani unsuccessfully appealed the dismissal. The appeal officer found that there had been a clear ongoing pattern of lateness. Whilst a number of the instances were only one or two minutes, if these were discounted, there was still evidence to show that Miss Tijani had not shown significant improvement. The appeal officer also found that timeliness was a legitimate business need for operational reasons.

Decision

An Employment Tribunal held that the dismissal was fair. In making its decision, the Tribunal noted the following points.

• Unusually, the disciplinary policy had not been provided in evidence. However, the tribunal accepted that poor timekeeping is generally an issue considered to be misconduct.
• Whilst on many occasions, Miss Tijani’s lateness was a matter of only one or two minutes, those occasions should not simply be disregarded. Employees should not only arrive at work on time, but ready to start work from the time they are being paid.
• Whilst Miss Tijani argued that she had never been told why her lateness impacted the business, the tribunal found that she knew, or ought reasonably to have known, the impact that her lateness would or could have on the rest of her team.
• The employer does not have to prove to an employee that there has been actual damage arising from their conduct (i.e. a ‘knock on effect’). If all the cleaners took the same approach and started even one or two minutes late every day, would have been highly disruptive; but even when it was just Miss Tijani, HCC would not know whether she was merely late or whether they would have to find cover for her, and timings were tight for reasons outside HCC’s control.
• It could not be said that no reasonable employer in a time-critical role where the work could not be made up by staying late would have dismissed, in the circumstances.
• Whilst Miss Tijani argued that other cleaning staff had been late and not dismissed, the Tribunal didn’t accept that she’d been treated worse than her colleagues; other employees had improved their timekeeping after receiving warnings.
• Whilst Miss Tijani also argued that insufficient investigation had been carried out both at disciplinary and appeals stages, she did not deny that she had been late, and the authorities confirm that there is a reduction in the amount of investigation that must be done if the misconduct is admitted.

Miss Tijani appealed to the Employment Appeal Tribunal (EAT). She argued, among other things, that the tribunal’s conclusion that poor timekeeping is generally a conduct issue was not properly informed and was speculative.

The EAT dismissed the appeal. The EAT agreed with the Employment Tribunal’s reasoning in terms of the sufficiency of the investigation, warnings issued to Ms Tijani and whether persistent lateness amounted to misconduct justifying dismissal.

Comment

This is a welcome decision for employers. Persistent lateness can be highly disruptive for businesses, especially where the employee is in a time critical role. This decision highlights that, provided the correct disciplinary procedure is followed and the employee is given warnings and opportunity to improve, employers can fairly dismiss for persistent lateness, even where the employee is quite often only a few minutes late. 

However, it is important to note that, in Tijani, the employee was in a time critical role as the employer needed to deliver its cleaning service before MPs arrived for work. The tribunal and EAT may well have come to a different conclusion had the employee been able to make up work by staying late. Whilst the employer does not have to prove any ‘knock on effect’ - i.e. that there has been actual damage arising from the lateness – it would need to show that it acted reasonably in treating the lateness as a sufficient reason for dismissal. Proving this is likely to be very challenging where the employee is able to and does make up time.

Additionally, in a world where flexible working is not only becoming the norm but is being demanded by employees, employers requiring employees work to the minute where there is room for more flexibility are likely to be subject to criticism.

Stuart McBride is a partner and Head of Employment at TLT Solicitors.

Contributors: Catherine Roylance and Sarah Maddock