Tijani v House of Commons Commission

In perhaps a slightly unusual shift from procedural correctness of dismissal processes, the EAT found in the recent case of Tijani v House of Commons Commission that an employment tribunal was entitled to find that an employees’ dismissal for persistent lateness was fair even though the employer’s disciplinary policy and procedure were not relied on in evidence.

The Claimant worked as a cleaner in the House of Commons from June 2015 until she was dismissed for persistent lateness in May 2019. A first warning had been given to her in 2017 with high levels of absence being recorded.  Disciplinary proceedings took place in 2018 resulting in a final written warning being issued to the Claimant in 2018 however she continued to be between 2 and 30 minutes late for work on a total of 43 further occasions. The employer investigated and another disciplinary hearing took place when the claimant was assisted by her trade union representative. This hearing resulted in her dismissal. The Claimant appealed but was not successful. The appeal hearing concluded that although the lateness was mainly only 1 or 2 minutes that there had not been any significant improvement in her timekeeping and as such the dismissal was upheld. 

The Claimant presented a claim for unfair dismissal to the employment tribunal who rejected her claim. In the hearing, the tribunal noted that unusually the employer had not included its disciplinary policy in its defence to the claim.   Despite this the tribunal took into account that the claimant had been on a live final written warning for the same conduct and accepted that poor timekeeping is generally regarded as misconduct. The tribunal remarked on the fact that much of the lateness was short being just 1 or 2 minutes but found that this should not simply be disregarded and accepted submissions from the employer that their employees were expected to arrive on time and be ready to start work at the start of their shift.   The tribunal also rejected the claimant’s contention that she had been treated differently to others and that she had not been able to name any other employee with the same lateness issues.     

The Claimant appealed to the EAT who dismissed her appeal. The EAT noted that the absence from evidence of the disciplinary policy was unfortunate, the tribunal were entitled to form the conclusion that it did as to the reasonableness of the dismissal itself. The EAT also took into account the number of occasions when the claimant was late for work and the claimants own acknowledgement that she had been told following the final written warning that further incidences could lead to dismissal.  The Claimant sought to play down the seriousness of the issues relying on the fact that most of the time, she was just a few minutes late.  The EAT echoed the tribunal in relation to this when it stated that it was incumbent on employees not only to be present but ready to work on time.

This case is probably a little unusual and the employer was able to defend it mainly due to the very high level of lateness recorded for the employee, that she had been given various warnings and time to improve and that she agreed that she had been told that she was at risk of dismissal. The management process had also taken many years to get to a dismissal point so it could be concluded that the employee was well warned of the risk. No doubt it will be a useful case for employers battling with employees whose misconduct persists without improvement but it remains the case that employers need to continually follow the correct process and procedure and that they are in a position to demonstrate that to a tribunal when faced with these types of disputes.