Fair to Dismiss Employee for a Few Minutes’ Lateness, EAT Rules

October 5, 2022

By Rachel Ford-Evans

A recent Employment Appeals Tribunal (EAT) decision found that it was fair for an employer to dismiss an employee for being persistently late for work for just a few minutes each time.

In this article, our employment team looks into what this decision will mean for employers.

What are the facts?

The employee worked as a cleaner in the House of Commons and was contracted to start work at 6am each morning. However, the employee regularly showed up a few minutes late for work.

She was first issued with a written warning after turning up to work late on 17 of the 20 days she was due to work at that time. Further disciplinary action was taken against her when her behaviour didn’t improve, and she continued to show up late. A final written warning was then issued where the employee was told that she would be dismissed if her timekeeping did not improve. The employer calculated that the employee showed up late a further 43 times, despite the disciplinary action taken against her. The late starts ranged from being 2 minutes late to 33 minutes. Having seen no improvement, despite the warnings of dismissal, the employee was dismissed.

She subsequently brought an unfair dismissal claim and argued that dismissal was a disproportionate sanction for being late by only a few minutes each time.

What did the Tribunal and EAT decide?

Both the Employment Tribunal and the EAT emphasised that if an employee showed up late, even by a few minutes, they were still late for work. They went on to say that all instances of lateness counted as misconduct, no matter how late.

The employee argued that her dismissal was unfair as it was inconsistent with how other colleagues, who had also showed up late to work, had been treated as they had not been dismissed. The Tribunal dismissed her arguments and said that her colleagues’ position was different as they had made efforts to improve their behaviour after receiving a written warning, whereas this employee continued to show up late and did not demonstrate any improvement in her behaviour.

Her claim was dismissed and the EAT agreed that it was fair for the employer to dismiss her in these circumstances.

What does this mean for employers?

This decision proves that employees showing up late to work can legitimately be treated as misconduct and can trigger disciplinary action, even dismissal. The decision also shows that there are no real degrees of lateness which an employer should have to accept or overlook – if you’re late, you’re late. Rather, employees should be ready to start work at their start time and if they are not, the employer is entitled to take disciplinary action.

However, employers still need to follow a fair and proportionate process before a fair dismissal can be achieved. The most important things to remember are:

1. Have a written code of conduct which sets out the rules for employees and emphasises that lateness is not acceptable.
2. Treat employees consistently, especially where their cases are directly comparable. This will also help to avoid claims of discrimination.
3. Follow your disciplinary procedure carefully, and make sure the employee is given every chance to defend themselves at a disciplinary hearing.
4. Dismissal should be a last resort and, unless gross misconduct is involved, should only take place after written warnings have been issued.

If you need any help with navigating the any of the issues raised above, please contact Rachel Ford-Evans on rford-evans@darwingray.com / 02920 829 120 for a free initial chat to see how we can help you. Or fill in our free online contact form.