A useful insight into fair conduct dismissals

By way of reminder, the dismissal of an employee with over two years’ continuous service will be unfair unless:

1. the employer can show that the reason or principal reason for the dismissal was one of five potentially fair reasons; and
2. the tribunal finds 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.

It was the second limb of the test (the reasonableness of the dismissal) which fell to be determined in the recent case of Tijani v House of Commons.

Facts

The Claimant worked as a cleaner at the House of Commons until her dismissal for persistent lateness in May 2019. Her track record for timekeeping was far from clear:

• In December 2017, the Claimant received a first written warning after having been late on 17 out of 20 occasions;
• In April 2018, further disciplinary proceedings for lateness took place resulting in a final written warning which would remain live for 24 months; and
• In May 2019, the Claimant was dismissed after an investigation and a disciplinary hearing into a further 43 instances of lateness.

After an unsuccessful appeal, the Claimant claimed unfair dismissal.

Tribunal decision

In the first instance, the Claimant’s claim was dismissed.

Whilst, unusually, the Tribunal did not have a copy of the House of Commons’ disciplinary policy to refer to, it took account of the Claimant’s live final written warning for the same conduct and accepted that poor timekeeping is generally considered to be misconduct.

EAT decision

The Claimant appealed the decision arguing, amongst other things, that the Tribunal’s conclusion that poor timekeeping is generally a conduct issue was not properly informed and was speculative.

The EAT accepted that the absence of a disciplinary policy from the evidence was unfortunate but found that the Tribunal was entitled to form the conclusion that it did as to the reasonableness of dismissal. This conclusion was reached given the sheer number of occasions on which the Claimant had been late as well as the Claimant’s acknowledgement that she had been told that continued lateness following her final written warning could lead to dismissal.

Comment

Many employers will be reassured by this decision which sides with the well-meaning employer who did everything “by the book” and in accordance with the ACAS Code of Practice. The case serves as a useful reminder to ensure, in cases of misconduct, that:

1. well drafted disciplinary procedures are in place and followed during any disciplinary proceedings;
2. first and final written warnings are issued as appropriate;
3. expired warnings are disregarded; and
4. employees are well-informed that continued misconduct could lead to further disciplinary action including, where relevant, dismissal.

We would further advise organisations to ensure that they maintain clear records, giving due consideration to the ACAS Code of Practice on Disciplinary and Grievance Procedures, when conducting disciplinary proceedings of any nature.

If you, or your business, require any advice on matters similar to those referred to above, please do not hesitate to contact our Employment Team on 020 8290 0440.