REWARD
Lateness, Covid, political opinions
Nicola Mullineux, senior employment specialist for Peninsula, explores the interesting outcomes of three different recent employment law cases
Persistent lateness amounts to fair dismissal The Employment Appeal Tribunal (EAT) had to consider whether the employment tribunal (ET) was right in rejecting an unfair dismissal claim due to an employee being late by only two to three minutes at a time. In the case of Tinjani v House of Commons Commission, the claimant worked as a cleaner between 2015 and 2019. In December 2017, she was given a first written waning for lateness because she arrived late on 17 out of 20 days. Her timekeeping didn’t improve, so she was issued with a final written warning in April 2018. This stated that, if she continued to arrive late, she may be dismissed. The employee was late on a further 43 occasions, arriving between two and 33 minutes late each time. As a result, she was dismissed in May 2019. The employee appealed the decision, saying that other employees had been late but hadn’t been dismissed. In dismissing her appeal, the employer highlighted that, unlike others, no significant improvement to her arrival times had been shown after she was issued with a final written warning. The employer further explained that, even if they discounted the times when she was only late by a few minutes, the overall number of times she’d been late was still unacceptable. The employee proceeded to raise a claim for unfair dismissal, arguing her
dismissal was a disproportionate sanction and that no reason was given to explain why her periods of lateness had a negative impact on the business. The ET rejected her claim, finding that the employer didn’t have to show actual loss or damage suffered because of employee lateness, nor did they have to wait for there to be a negative impact of the lateness to proceed with formal action. The ET further decided that it wasn’t necessary to disregard lateness that was only two to three minutes and agreed fully with the employer’s argument that employees should arrive with sufficient time to be ready to start their duties from the time they’re being paid for. Their arrival time shouldn’t, in essence, be their start time since pre-work preparations will likely be necessary. Following an appeal by the employee to the EAT, the judge fully agreed with the decision of the ET and rejected her case once again. It reiterated the point made by the ET about the difference between being present at work and being ready and available to begin work at the contracted time, affirming that the latter is needed. Furthermore, the EAT confirmed that the employer doesn’t have to show there was a knock-on impact of her lateness, nor that it caused any detriment to the organisation. The employer’s application of a fair disciplinary process and issuance of a series of warnings, which ultimately led to the
employee’s dismissal, was sufficient in this case without the need for further evidence. Covid isn’t considered a disability An employee tested positive for Covid and around two and a half weeks later, was dismissed for unrelated reasons. Six weeks after her dismissal, the employee’s doctor diagnosed her with long-Covid. As such, she raised a claim for disability discrimination, arguing that her long-Covid should be classed as a disability and that this was the real reason she was dismissed. During her period of employment, she explained to her employer that, due to testing positive for Covid, she was experiencing: ● ongoing fatigue ● shortness of breath ● generalised aches and pains ● discomfort ● headaches ● brain fog. These symptoms negatively impacted many aspects of her daily activities, including shopping, sleeping, socialising and driving. Such effects can, in some cases, contribute towards an employee being regarded as having a disability under the Equality Act 2010. However, several other specific tests must also be met for this to be the case. The ET closely considered the definition of a disability to decide whether, at the
| Professional in Payroll, Pensions and Reward | December 2022 – January 2023 | Issue 86 44
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