In Okoro v Bidvest Noonan (UK) Ltd, the Claimant brought claims for unfair and wrongful dismissal after being dismissed for falling asleep during his shift as a CCTV security officer. The Claimant was successful at the Final Hearing and at a recent Remedy Hearing he was awarded £20,521.35 in compensation. At the Final Hearing, the Tribunal focused on whether the Claimant’s behaviour amounted to gross misconduct, highlighting both the importance of following disciplinary policies and the financial risks of failing to do so.
Background
The Claimant had been employed by Bidvest Noonan for 16 years, working in various roles including cleaning, security, and facilities services. The Claimant’s employment was terminated, without notice, following a finding of gross misconduct.
At the time of the Claimant’s dismissal, he was working as a CCTV security officer in the Xscape Shopping Centre in Milton Keynes. During a shift one of the Respondent’s managers conducted a spot check on the Claimant. This manager reported witnessing the Claimant asleep and subsequently reviewed the security footage with another manager. Both managers confirmed that the footage showed the Claimant was asleep for approximately 15 minutes during his shift.
The Claimant was later invited to an investigation meeting in which he also reviewed the CCTV footage. The Claimant argued that he had not been sleeping but rather had shut his eyes to ‘meditate or think’. The Claimant also said that he had received medical advice to close his eyes and look away from screens to alleviate the discomfort caused by his dry eyes. The Respondent subsequently referred the Claimant to occupational health for his eyes. Although the Claimant attended the assessment, he declined to allow the results to be shared with the company.
The investigation concluded that the Claimant had fallen asleep whilst on duty and that this amounted to gross misconduct. The Claimant was dismissed but chose not to appeal the decision, instead submitting a claim to the Employment Tribunal.
Decision
The Tribunal accepted the evidence that the Claimant had been asleep during his shift and acknowledged that a security guard sleeping on duty was “plainly serious”. The Tribunal did not criticise the Respondent’s investigation and found that the manager’s belief that the Claimant was asleep were genuinely held. The Tribunal ultimately concluded, however, that the dismissal was unfair.
The Tribunal determined that the sanction of summary dismissal fell outside the “band of reasonable responses”. Importantly, the Tribunal reviewed the Respondent’s Disciplinary Policy and determined that sleeping on duty was neither listed as an example of gross misconduct, nor was it as serious as the examples that were listed in the policy. The Tribunal suggested that a final written warning would have been a more appropriate response, considering the policy and the context of the situation. Some of the context that the Tribunal considered in this case included: the Claimant’s conduct was not deliberate, he had long service and a previously exemplary record.
Although the Claimant was successful in his claim, he was ordered to pay the Respondent £4,030 in costs due to his contribution to the dismissal.
Lessons for employers
1. Consider the context
It is important to consider the context of the situation in disciplinary investigations. Sanctions should be always proportionate, considering external factors like an employee’s previous record.
2. Ensure disciplinary policies are clear and consistently applied
The Tribunal noted that sleeping on duty was not as serious as other behaviours listed in the disciplinary policy. This claim highlights the need for clear definitions of misconduct and gross misconduct within policies coupled with consistent application of the policies.
How we can help
For further information, or to discuss the issues raised within this case, please contact us to speak to a member of our Employment Team.
