Many employers are likely to have disciplinary policies in place where persistent lateness would be regarded as a misconduct issue and thus could give rise to disciplinary action. There is a recent Employment Appeal Tribunal decision in Tijani v The House of Commons Commission that suggests persistent lateness is a fair reason for dismissal even if it is late by 2 to 3 minutes. Where in this case, an employee working as a cleaner since June 2015 was regularly late starting work when it was very important to start and finish work on time before the MPs arrived for the day.
Can an employer terminate you for coming late to work?
Due to the employee’s lateness, namely arriving late 17 days out of 20 days, a first written warning was issued in December 2017 but lateness did not improve, culminating with a final written warning issued in April 2018 following a disciplinary hearing, making clear if timekeeping did not improve it could result in a dismissal.
Unfortunately, there was no improvement in lateness over 43 occasions, ranging between 2 and 33 minutes late, so the employee was dismissed in May 2019.The employee claimed unfair dismissal, alleging that the sanction of dismissal was disproportionate to the misconduct where there was no actual damage sustained by the employer over the breach and that there was no consistency of approach as other employees arrived late but had not been dismissed.
The Employment Tribunal (ET) decided the dismissal was fair as the employer was not required to prove loss over the breach. Other employees were treated differently as following warnings they improved their attendance and there was an encumberment on employees to be ready and able to start work from the time they were paid to work.
The employee appealed the decision on various grounds, but in particular that poor time keeping should not be a misconduct matter. The Employment Appeal Tribunal rejected this and stood by the ET decision.
The above case highlights that as long as the employer follows a fair disciplinary process, then persistent lateness, even by 2 to 3 minutes, can give rise to disciplinary action and potential dismissal if things do not improve, as long as there’s no justifiable explanation for lateness, like matters related to an employee’s disability.
The above case is reassuring to employers and reflects an earlier (ET) decision in Ghartey v Royal Museums Greenwich (2016) where a long-serving employee was dismissed for persistent lateness following an accumulation of warnings where the employee knew the importance placed by the employer on arriving on time and this was despite the employee’s difficult journey to work involving several buses.
The article is for general information purposes only and should you require any further assistance on the matter, please do not hesitate to call our advice-line team on 0116 274 9193.
