In the case of Okoro v Bidvest Noonan (UK) Ltd, the Employment Tribunal had to consider whether it was reasonable for the employer to dismiss a security officer after he fell asleep during a night shift.
Facts
The claimant worked for the respondent as a CCTV controller for 16 years prior to their dismissal.
A manager conducted a spot check on the claimant one day and observed that they were asleep during their shift for 15 minutes. The shift was their sixth consecutive night shift.
When CCTV confirmed that the claimant appeared to be sleeping, they were invited to attend an investigation meeting. Initially, the claimant denied having fallen asleep, saying that they had been given medical advice to help manage their “dry eyes”, which included closing them and looking away from their screen. The claimant continued working their usual shifts and was invited to a disciplinary hearing where they again denied being asleep.
The respondent deemed this as gross misconduct and summarily dismissed them.
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Employment Tribunal (ET)
The ET found that the investigation was fair, and the belief of misconduct was genuine. However, it held that the dismissal was not in the band of reasonable responses for the employer to take.
These factors included that there was a distinction between an individual deliberately leaving their post to nap versus momentarily nodding off. The claimant’s actions were not calculated. The claimant did not deliberately decide to sleep. It was also relevant that there was no actual loss or damage during the time the claimant was asleep for what the ET deemed to be a “brief period”. The centre within which the claimant worked was closed and securely locked. No members of the public were on site, and it was unlikely anyone would be in any physical danger because of the claimant falling asleep.
The ET also noted the claimant had a clean disciplinary record and long service and that falling asleep on duty, whilst obviously misconduct, was not specifically listed as an act of gross misconduct in the respondent’s disciplinary policy. It was, the ET decided, “a very different order of seriousness when compared to the examples of gross misconduct set out in the policy.” The respondent’s disciplinary policy contained broad categories of behaviour under the labels “misconduct” and “gross misconduct”. Those described as “misconduct” were generally minor incidents and acts of negligence where there are no major consequences, whereas “gross misconduct” seemingly encompassed wilful or persistent acts of defiance or bad behaviour, dishonesty, criminality and serious acts of negligence. Labelling what the claimant had done as gross misconduct, therefore, seemed at odds with the policy.
The ET determined that a reasonable employer would not have dismissed in the same circumstances, holding that the decision fell outside the range of reasonable responses and that a final written warning would have been appropriate. The claim for unfair dismissal was therefore upheld and the claimant was awarded just over £20,000 in compensation.
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