Can persistent lateness justify the dismissal of an employee?

The recent Employment Appeal Tribunal (EAT) case of Tijani v House of Commons, in which a member of the House of Commons’ cleaning staff was dismissed for persistent lateness, provides a useful reminder that dismissals for repeated minor misconduct can be justifiable, even if an employer’s disciplinary policy is not clear. This blog explains the case and outlines practical tips for employers facing a similar scenario.

The Background

Ms Tijani started working as a cleaner at the House of Commons in June 2015. She would often arrive at work late, and in December 2017 received a first written warning after arriving late to work on 17 out of 20 days. She was given a final written warning in April 2018 which made clear to her that if her timekeeping did not improve, the next stage of the process could lead to dismissal. Despite this, her lateness continued. Although some of the periods of lateness varied considerably (from 2 minutes up to 33 minutes), a subsequent investigation found that Ms Tijani arrived late to work 50 times in the seven months following the final warning. Ms Tijani was subsequently dismissed in May 2019.

The ET and EAT decisions

Ms Tijani brought a claim in the Employment Tribunal (ET) for unfair dismissal. The House of Commons relied on her conduct (ie her persistent and continued lateness) as a fair reason for the dismissal. Ms Tijani argued that dismissal was a disproportionate response to lateness, arguing that she was only late “sometimes”, that others had not been dismissed for being late and that she had not been told why “two minutes here or there” had impacted the business.

The ET rejected the claim, finding that the House of Commons had acted reasonably and that the dismissal, following multiple written warnings, was fair.

Ms Tijani appealed to the EAT, complaining that the House of Commons did not produce a disciplinary policy in evidence during the hearing before the ET. Without the policy, she argued, the ET could not measure the nature and extent of the alleged misconduct and the appropriate reasonable range of responses available to the employer.

Whilst the EAT found that this was unfortunate, it recognised that Ms Tijani had been given written warnings (including a final one) and was well aware that dismissal would be a likely consequence should her lateness persist. In addition, the EAT felt that the sheer number of times she had been late meant that dismissal was a proportionate response. The EAT also concluded that employers should not have to prove that an employee’s misconduct was having a “specific knock-on effect” on the business in order to justify a dismissal. The EAT found that Ms Tijani’s dismissal was fair and rejected her appeal.

Useful information for employers

Employers should have confidence in exercising disciplinary sanctions, including dismissal, for minor misconduct where that conduct is persistent and continued. Prudent employers, however, will have a clear disciplinary policy setting out a non-exhaustive list of examples of misconduct and associated sanctions. This can be produced during any disciplinary proceedings or litigation to demonstrate that the employer has acted reasonably in accordance with a clear disciplinary policy.

Employers should also consider taking the following steps if faced with a similar situation:

• Keep a clear record of the persistent misconduct, no matter how minor.
  
  Not only does this assist in building a picture of the misconduct over time, it also protects employers against a situation where the employee tries to minimise the misconduct, as Ms Tijani did in claiming that her lateness was “sometimes” and “just a couple of minutes”.
• Keep records of all warnings given to the employee, both written and verbal, and notes of any meetings with the employee discussing the misconduct.
  
  This will protect against allegations of unfair procedure or process, show that there was open dialogue with the employee, and that it had been made clear to the employee that their conduct was an issue and the potential sanctions if the problem persisted.
• Ensure the employee is aware of disciplinary policies and that continued misconduct, however minor, could result in dismissal.
  
  Ensure that the employee knows where to find a copy of the relevant policy, or is provided with a copy directly where necessary.
• Explore the reasons for the persistent misconduct.
  
  It would be prudent to discuss this with the employee to ascertain whether an external factor, such as ill health or personal issues, is behind the misconduct. If this is the case, consider whether any adjustments could be put in place to support the employee, or if compassionate or sick leave may be required for a short time.

If you require further information about anything covered in this blog, please contact Lise Whelan or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, November 2022