R Gafari Tijani v The House of Commons Commission

A tribunal may uphold dismissal for persistent lateness where the employee is subject to a live final written warning for the same conduct, has continued to be late on numerous occasions, and knew that further lateness could lead to dismissal. The employer need not prove actual operational loss or a specific knock-on effect before acting.

An employment tribunal is ordinarily to decide the case the parties present. It is not required to enter the factual and evidential arena by ordering further disclosure during the hearing, even where disclosure would normally have been appropriate. A reasonable investigation need not explore every possible explanation, particularly where misconduct is admitted and the employer has sufficient evidence for its conclusion.

The claimant, a cleaner employed by the respondent, was dismissed in May 2019 for persistent lateness while subject to a final written warning for lateness. She brought an unfair-dismissal claim before the Central London Employment Tribunal, which dismissed it after finding that the respondent had a genuine and reasonable belief in the misconduct and that dismissal fell within the range of reasonable responses.

On appeal, the claimant challenged the absence of the disciplinary policy and comparator disclosure, the alleged inconsistency of treatment, the scope of the investigation, and shortcomings in the internal appeal. The central issue was whether those matters disclosed an error of law in the tribunal's conclusion that the dismissal was fair.

1. Appeal dismissed. The Employment Appeal Tribunal held that the tribunal had been entitled to find that persistent lateness was a conduct matter and that dismissal was fair.

2. The absence of the disciplinary policy from the hearing bundle was unfortunate, but it did not prevent the tribunal from assessing fairness. The claimant had been given a final written warning, knew it remained live for 24 months, and knew that further lateness could result in dismissal. Her numerous further instances of lateness therefore supported the tribunal's conclusion without impermissible speculation.

3. The respondent did not have to demonstrate actual loss, damage, or a particular operational consequence caused by the lateness. It could take action pre-emptively. Employees were required to be ready to start work at the time for which they were paid, and repeated short periods of lateness were not immaterial merely because some were only one or two minutes.

4. The tribunal was entitled to reject inconsistent-treatment and scapegoating allegations. The claimant could not identify a colleague with an equivalent or worse record. It accepted unchallenged evidence that other cleaners had been disciplined but improved, whereas the claimant's improvement was not sustained.

5. Applying the approach in Muschett v HM Prison Service [2010] IRLR 451 CA, the tribunal was not obliged to order mid-hearing disclosure of disciplinary material or comparator evidence. Its function was to decide the evidential case advanced by the parties, rather than investigate whether further evidence might improve a party's case. The respondent's investigation was reasonably sufficient; it did not have to pursue every possible explanation for admitted lateness.

6. The tribunal had identified deficiencies in the internal appeal process and reservations about the appeal officer's evidence. It was nevertheless entitled to regard them as minor and incapable of affecting the outcome. Given the continuing lateness during a final warning, the finding that dismissal was within the range of reasonable responses disclosed no error of law.

• Employment Appeal Tribunal: appeal dismissed; the dismissal of the unfair-dismissal claim was upheld.
• Employment Tribunal, Central London: following a hearing on 19 and 20 February 2020, dismissed the claimant's unfair-dismissal claim in written reasons dated 9 March 2020.