The Employment Appeal Tribunal (EAT) has recently heard the case of Tinjani v House of Commons Commission, where it was held that a dismissal of an employee for persistent lateness was fair, even though the employer’s disciplinary policy and procedure had not been submitted as evidence.
The employee worked as a cleaner at the House of Commons from June 2015 until her dismissal in May 2019 for persistent lateness. In December 2017, she had received a first written warning after being late on 17 out of 20 days. In April 2018, the employee received a final written warning which again was for lateness.
By January 2019, the employee had been late by between two and thirty minutes on a further 43 instances. Following an investigation and disciplinary hearing, the employee was dismissed.
The employee appealed her dismissal and when this was unsuccessful, brought a claim in the employment tribunal for unfair dismissal.
The employment tribunal rejected the employee’s claim. Whilst the employer had not provided a copy of the disciplinary policy, which was unusual, the employment tribunal noted that the employee was on a final written warning for poor timekeeping at the time of her dismissal, and that persistent lateness is generally considered to be misconduct.
The employment tribunal accepted the employer’s submission that it is incumbent on employees not only to arrive at work on time, but to be ready to start work from the time they are being paid. The employment tribunal also rejected the employee’s argument that she had been treated worse than her colleagues, as she had been unable to provide the details of any colleague whose lateness record was equivalent or worse than hers.
The employee appeal to the EAT, arguing, among other things, that the tribunal’s conclusion that poor timekeeping is generally a conduct issue was speculative and not properly informed.
The EAT dismissed the appeal. When considering the appeal, the EAT gave consideration to the sheer number of times the employee had been late, and the fact that she was on a final written warning for lateness at the time of the dismissal.
The EAT did note that the disciplinary procedure should really have been disclosed as part of the proceedings, but ultimately, the absence of the disciplinary procedure was not fatal to the employer’s ability to defend the claim, with the EAT finding that the tribunal was entitled to find that dismissal for misconduct was a reasonable response in the circumstances.
Whilst this case was decided in the employer’s favour, it highlights the importance of having robust and carefully drafted disciplinary procedures and policies in place.
If you would like to update your current disciplinary procedures, or have any queries regarding managing an employee who has poor timekeeping, please do not hesitate to contact the employment team – Gemma.Wilson@glaisyers.com or 0161 833 5689.