ARTICLE
29 March 2023

Can An Employee Be Dismissed For Being Late?

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Herrington Carmichael

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A security guard with dyslexia and Asperger's syndrome suffered disability discrimination when he was dismissed for his persistent lateness...
UK Employment and HR
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A security guard with dyslexia and Asperger's syndrome suffered disability discrimination when he was dismissed for his persistent lateness, the Employment Tribunal has found.

Background

Raymond Bryce, a relief security officer, arrived five minutes late for his very first shift and did so again the following week. When he arrived late for a third time his employer dismissed him.

Mr. Bryce had informed the employer of his dyslexia and Asperger's syndrome and explained that this affected his cognitive functioning in the mornings. He suggested a grace period of 15 to 20 minutes at the beginning of each shift, but his employer refused and dismissed him.

Mr. Bryce then brought various claims against his employer, including discrimination arising from his disability and failure to make reasonable adjustments.

Disability and Timekeeping

Mr. Bryce gave evidence that his difficulties with timekeeping stem from his dyslexia, explaining that he must use both digital and analogue alarms to wake up in the morning as he struggles to read the time on the digital clock, meaning that he believes he has more time than he does. He explained that the knock-on effect of running late then serves to heighten his anxiety as this conflicts with his inflexible morning routines, which are a characteristic of Asperger's syndrome, leaving him overwhelmed.

Mr. Bryce described these factors as having a "domino effect" meaning that no amount of planning will prevent his lateness, stating "I'm always going to be late for my own funeral".

Judgment

The Tribunal upheld the claim for discrimination arising from disability as the requirement to be on site at a set time had the specific effect of placing Mr. Bryce at a disadvantage. As his timekeeping had a significant influence on the employer's decision to dismiss him, it was found to be the main reason for the treatment he received. The Tribunal acknowledged that there was a real need to ensure that the site was always manned, for reasons of security, and that this was a legitimate aim, but this did not justify the discriminatory impact upon Mr. Bryce.

The Tribunal also upheld that the employer failed to make reasonable adjustments for Mr. Bryce's disability. The employer believed the proposed grace period of 15 to 20 minutes to be too onerous and the decision was made to dismiss Mr. Bryce.

What does this mean for employers?

When an employee is consistently late, employers may well be inclined to fire them. However, as Mr. Bryce's case shows, if that employee has a disability such as dyslexia or Asperger's syndrome, caution should be exercised. There is a balancing act for employers between using a proportionate means to achieve a legitimate aim, such as ensuring a site is adequately manned, and discriminating against an employee on the grounds of their disability. Certainly, where rearranging rotas could accommodate the needs of the employee, it is unlikely that firing them will be considered proportionate.

All reasonable steps should be taken to understand the employee's individual needs, and this extends to reviewing the suitability of any adjustments made to ensure their needs are sufficiently met. In assessing the employee's individual needs, employers should consider seeking advice from Occupational Health.

Employers should ensure they gather extensive documentary evidence of the steps taken to establish what reasonable adjustments the employee requires and how this is balanced with legitimate business needs. This is especially important where such an employee is dismissed due to business needs as, if the employee later brings a claim, the Tribunal will take this into consideration as to whether they suffered disability discrimination.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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