Mon 14 Nov 2022

Serious consequences of "minor" misconduct

Even minor misconduct can, if persistent, result in a fair dismissal.

Dealing with gross misconduct offences can be difficult but dealing with minor, but persistent, offences can be worse.  Management and/or HR time is taken up following a longer disciplinary procedure, monitoring for improvement is required, consideration needs to be given to when further action is justified and if it can be taken while existing warnings are still "live".  It can eventually end up in the same place as gross misconduct - a disciplinary hearing where dismissal is the potential outcome but there may be nagging doubts as to whether dismissal is going to be a reasonable sanction. 

One such recently reported case was Tijani v The House of Commons Commission.  The claimant had received a first written warning in 2017 when she had been late on 17 out of 20 days.  A final written warning was issued in 2018 following an investigation showing she had arrived late over 50 times in six months.  After continuing to be late she was finally dismissed in 2019.    The claimant's application to the tribunal and indeed her argument before the EAT suggested that even at that stage she did not really get that she had done much wrong - perhaps if she had she may not have persisted in her lateness.  She stated in her tribunal application that she had been unfairly dismissed "because I was sometimes late to work".  She also complained that dismissal was not proportionate to the number of times on which she had been late , that others who were late were not dismissed and that she had not been told why her "two or three minutes here or there" had an impact on the business. 

The employment tribunal found that the employer had acted reasonably in dismissing, and the Employment Appeal Tribunal (EAT) agreed.  This was despite the fact the employer was unable to produce a disciplinary policy during the litigation.  Importantly, the claimant was aware she was on a final warning and that dismissal was a likely consequence if her lateness persisted.  A number of colleagues had been treated differently because their lateness had improved. 

It appears the perception of the claimant in this case was that her lateness was not really that much of a problem given there was no apparent impact on the business.  The EAT were of the view that, in such circumstances, there was no need for the employer to prove that the lateness had any "special knock-on effect" on the business.  As the employment tribunal had said, "Enough was enough" when it came to the lateness.

Where an employee continually and despite warnings continues to commit minor misconduct (such as lateness) employers should be confident in taking disciplinary action up to and including dismissal, having followed a fair and reasonable procedure (including prior formal warnings).  Unlike gross misconduct, the dismissal would be with notice.  Although it did not change the outcome in this case, employers should also have a written disciplinary policy that is produced during any disciplinary procedure and at any subsequent tribunal hearing. 

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