Sleeping on the Job

The Employment Tribunal in the case of Okoro v Bidvest Noonan (UK) Ltd has considered whether it was fair to dismiss a security officer for falling asleep at work.

Background

The Claimant had been employed as a CCTV Controller by Bidvest Noonan (UK) Ltd (“the Respondent”), a security services company, for 16 years and was based at a shopping centre.

While on night shift for the 6^th consecutive night in a row, a manager found the Claimant to be asleep while on duty in the control room. CCTV showed that the Claimant had been asleep for around 15 minutes.

The Claimant was invited to an investigation meeting where he denied being asleep and said that he was in fact meditating.

A disciplinary hearing was subsequently held and the Claimant was dismissed for gross misconduct.

The Claimant brought claims for unfair and wrongful dismissal amongst others.

The Law

The issues for the tribunal to decide in this unfair dismissal case were:

1. Was there a fair reason for the dismissal (i.e. misconduct)?
2. Did the Respondent genuinely believe that the Claimant was guilty of the misconduct alleged?
3. Were there reasonable grounds on which that belief was founded?
4. Was the procedure followed within the reasonable band of responses? In other words, would a reasonable employer have carried out the procedure the Respondent did?
5. Was the sanction within the reasonable band of responses? In other words, would a reasonable employer have imposed the sanction the Respondent did?

Decision

The tribunal found that points 1 – 4 above were all affirmed, there was a genuine belief of misconduct and the disciplinary process had been fair and reasonable. However, the tribunal concluded that it was not within the reasonable band of responses to dismiss the Claimant taking into account the following:

• The Claimant had 16 years’ service with a clean disciplinary record;
• It was a very short period of time which the Claimant was asleep and this was not intentional or deliberate, he seemed to have nodded off on his sixth consecutive night shift;
• Falling asleep at work was not listed as an example of gross misconduct in the Respondent’s disciplinary policy;
• There were no adverse consequences to the Respondent as a result of the Claimant falling asleep, the shopping centre had been closed and locked and there were no visitors.

The tribunal concluded that the dismissal was unfair and the correct action would have been to issue a final written warning.

The Claimant was awarded around £20,000 in compensation.

Comment

This case is a reminder to employers that even though they may think that there is a clear-cut case of gross misconduct, it is essential to consider the wider surrounding circumstances before reaching that conclusion and, then determining the sanction to impose. It is critical that factors such as length of service, disciplinary record and the actual consequences to the business are taken into account, especially if dismissal is a potential outcome, to mitigate the risks of a successful claim for unfair dismissal if the “punishment did not fit the crime”.

Case reference: Okoro v Bidvest Noonan (UK) Ltd 3301879/2023