When an employee has been dismissed for misconduct and brings a tribunal claim for unfair dismissal, it is usual for one of the parties to include the disciplinary policy in the bundle of evidence. Although this was missing in Tijani v House of Commons Commission (HCC), the EAT held that the tribunal was still entitled to find that the dismissal was fair given the evidence that the employer had presented.
Basic facts
Ms Tijani started work as a cleaner at the House of Commons in June 2015. She received a first written warning in December 2017 after arriving late for work on 17 out of 20 days. Despite being given a final written warning in April 2018 lasting 24 months and being told that further breaches could lead to dismissal, Ms Tijani was late on a further 50 occasions. After a disciplinary hearing in April 2019 at which she was accompanied by her trade union representative, she was dismissed in May that year.
Ms Tijani lodged a tribunal claim for unfair dismissal on the basis that dismissal was not a proportionate response to the number of times on which she had been late and that others who had also been late had not been dismissed. Ms Tijani also complained that she had not been told how her “two or three minutes here or there” had impacted the business.
Tribunal decision
Noting that Ms Tijani was on a live final written warning, the tribunal concluded that it was reasonable for the HCC to take action in the circumstances. Although she was often late by only one or two minutes, her poor timekeeping was disruptive as her managers did not know whether she was just running late or whether they would have to find cover for her. It agreed with the HCC that it was also incumbent on employees not only to be present, but to be ready to work on time.
It rejected her argument that other colleagues who had been late had not been dismissed, not least because she had not been able to provide any names of anyone with a similar record of lateness to her. Conversely, the HCC provided evidence that five other employees who had disciplinary proceedings taken against them had all subsequently improved. Although the tribunal did not have a copy of HCC’s disciplinary policy, it accepted that poor timekeeping can generally be considered as misconduct and an employer is not obligated to prove to an employee that there has been actual damage arising out of their conduct. It therefore dismissed her claim.
Ms Tijani appealed on the basis that the tribunal judge could not measure the nature and extent of the alleged misconduct, nor the appropriate sanction for that misconduct, as he did not have a copy of the disciplinary policy. His conclusion that poor timekeeping was generally an issue of misconduct must, therefore, have been speculative. In addition, he had failed to test the evidence as to whether she had been treated differently from others in the same material circumstances.
EAT decision
Dismissing the appeal, the EAT held that although it was unfortunate that the tribunal was not provided with a copy of the disciplinary policy, there was no element of speculation in its conclusion that dismissal was a reasonable sanction in the circumstances. For instance, her employer had provided evidence as to the sheer number of occasions on which Ms Tijani was late; Ms Tijani had admitted her lateness; and she had also acknowledged that she had been warned that dismissal was a possibility if her timekeeping did not improve.
As for the argument that the tribunal had failed to look further into whether she had been treated differently from other colleagues, the EAT held that it was entitled to accept the employer’s evidence as truthful. Not only had Ms Tijani failed to provide any named comparators in her initial application form, but she had also failed to provide further details when asked to do so by the tribunal.