What if we told you the employee was supposed to be monitoring a shopping center which was closed for the day, he had been caught asleep by a manager and there was camera footage showing he had been asleep at his post for 15 minutes (or as the employee tried to call it ‘meditation/eye irritation’), would you think dismissal was a fair outcome?
The employer in Okoro v Bidvest Noonan UK Ltd thought it was. They had carried out a good investigation, and a fair disciplinary process was followed before they dismissed the employee for gross misconduct.
Unfortunately for the employer, the judge found the dismissal was unfair – a final written warning would have been reasonable in the circumstances… did we forget to mention the employee had 16 years’ service and an unblemished disciplinary record?
So, what did the judge say, and what can businesses learn from this case?
- Judge’s comments
- Learning points
- What to do if you have a potential conduct issue in your business
Judge’s comments
The judge was satisfied with the process the employer had followed, found that the employee had lied about being asleep and that the dismissing manager had a genuine belief in the employee’s guilt. What was in question was whether the decision to dismiss was within the band of reasonable responses – if it wasn’t, then the dismissal was unfair.
The judge considered in favour of dismissal factors that included:
- The employee was solely responsible for monitoring the CCTV cameras, as this was paramount to the service the employer provided to its client; failure to remain awake at all times was potentially highly detrimental to the performance of their contract and could have led to its cancellation
- It was a lapse that could potentially have had serious consequences, in that the security of the site was compromised for the duration of the period during which the employee was asleep
The judge considered that the only other viable option open to the employer in the circumstances would have been to issue a final written warning rather than dismissing. Arguments in favour of this course of action included:
- The employee’s long and otherwise exemplary record
- That this was not a calculated or deliberate decision by the employee to take a nap during working hours, but an inadvertent dozing off whilst obviously very tired, having worked an additional 2 night shifts in excess of his regular shift pattern
- The period during which he was asleep was “relatively brief”
- The fact that there was no actual loss or damage caused as a result of his lack of vigilance
Ultimately, the judge found the dismissal unfair in the circumstances, commenting that:
- “The seriousness of falling asleep on the job is something that very much depends upon its context. The Tribunal recognises a distinction that must be drawn between, for example, deliberately leaving one’s post and sneaking off to a secluded part of the premises to take a nap at one extreme, and momentarily nodding off for a few seconds with few if any consequences at the other”
- Whilst the employee here was asleep for more than a few seconds, the “facts are rather closer to the less serious end of the spectrum, principally because of the fact that his actions were involuntary not willful, and that although there was undoubtedly the potential for there to be serious consequences caused by this incident… the potential was limited [as the shopping center was locked and no members of the public were present]… and none were caused
- “The factor which weighs most heavily away from summary dismissal is the employee’s length of unblemished service”. Whilst “plainly serious”, his conduct didn’t outweigh his many years of service, and the decision to dismiss was outside the band of reasonable responses and was unfair. The judge found that the employee should have been given a final written warning.
The employee was awarded £20,521.35.
Learning points
This case highlights that there is a lot to think about if a business is faced with a conduct issue. Whilst it is really important to get the investigation and the process right, as the business in this case did, it’s often deciding what level of sanction is appropriate in the circumstances that can be particularly tricky. Whilst not all businesses will make the same decision when presented with the same set of facts, the outcome must be ‘within the band of reasonable responses that would be open to a reasonable employer’, as this case highlights, fall outside of that and a dismissal will be unfair.
When thinking about reasonableness, factors to consider include:
- What is the employee’s length of service?
- Does the employee have a clean disciplinary record?
- Has the employee raised any mitigation?
- What does the contract allow for?
- How serious is the conduct?
- What level of sanction has been applied in the Company previously for the same act? Were the circumstances similar, or are there material differences?
What to do if you have a potential conduct issue in your business
If you have a possible conduct issue in your business, please get in touch for specific advice on the facts of your case and guidance on the process to follow.
Don’t forget to check your employee’s length of service and let us know if you think they may have less than two years’ continuity of service. This is because you may be able to do a ‘short-service’ dismissal if your employee doesn’t have sufficient service to claim ordinary unfair dismissal – it can save you time and effort. However, you do need to make sure you seek advice before taking any action, as there are a number of claims even short-serving employees can bring, such as discrimination or dismissal for an automatically unfair reason.
Have an HR matter that’s troubling your business? Please get in touch, as we are happy to help.