Sleeping at work: fair or unfair dismissal?
When a security guard was dismissed for sleeping at work, the tribunal in Okoro v Bidvest Noonan (UK) Ltd had to determine if his employer acted fairly. We examine this case and set out some useful tips for other employers.
Facts
Mr Okoro, a CCTV controller with 16 years' service, worked at a client's site - a large shopping centre. One of his main duties was to monitor the CCTV from the main control room.
One night, Mr Okoro was seen by a manager asleep in the control room. CCTV confirmed he was asleep for 15 minutes from 05:03am to 05:18am.
At the investigation meeting, Mr Okoro watched the CCTV and said he was not asleep. Instead, he closed his eyes and looked away from the monitors. He gave some evidence of medical treatment for an eye condition and said he ‘wasn’t dozing, personally want to meditate and think'. It was his sixth consecutive night shift.
While Mr Okoro was referred to occupational health, he refused to give permission for the content of the assessment to be disclosed to his employer. The investigation report concluded that Mr Okoro had fallen asleep, it should progress to a disciplinary hearing.
Mr Okoro was dismissed and brought claims for unfair dismissal, wrongful dismissal, holiday pay, redundancy pay, and direct discrimination on the grounds of race. However, the holiday and redundancy pay claims were withdrawn and the direct discrimination claim was dismissed.
Employment Tribunal
The parties agreed that ‘conduct’ was the potentially fair reason for the dismissal. The tribunal also found the employer had a genuine belief that Mr Okoro was guilty of the misconduct. While the tribunal accepted, he may have had some discomfort with his eyes, it held that Mr Okoro was asleep.
The tribunal found the investigation was timely, thorough and conducted in an open and even-handed manner. It was supported by CCTV which Mr Okoro had the opportunity to view and comment on. Also, when a possible health condition was raised, he was referred to occupational health. Therefore, the tribunal said the investigation process could not be criticised.
The main question for the tribunal to consider was whether the dismissal was within the band of reasonable responses.
Mr Okoro was solely responsible for monitoring the CCTV and failing to do so could have jeopardised the client contract and compromised site security. The tribunal also noted that Mr Okoro failed to accept he was actually asleep.
However, the tribunal referred to the case of Newton and anor v Ryder plc which held that there is a distinction between a situation where an employee simply drops off unintentionally and one where there is a deliberate plan to sleep while on duty. In this case, the tribunal found Mr Okoro did not fall asleep deliberately, was only asleep for a relatively brief period, and no actual loss or damage was caused. The shopping centre was closed, securely locked, and no members of the public were there.
The tribunal also referred to McDonagh v Johnson and Nephew (Manchester) Ltd where the Employment Appeal Tribunal held that while sleeping on duty is misconduct, it's usually insufficient to justify a fair dismissal (although it may attract a very severe warning).
The tribunal also noted that the disciplinary policy did not list sleeping on duty under the examples of gross misconduct, although it acknowledged that the absence of such a rule does not necessarily mean the dismissal is unfair.
The tribunal said that the key factor was Mr Okoro's length of unblemished service. In the 16 years he worked there, he had no disciplinary record. He fell asleep for 15 minutes on his sixth consecutive night shift, with no discernible consequences. The tribunal said, “In our judgment, whilst plainly serious, this does not outweigh his many years of service and the decision to dismiss was outside of the band of reasonable responses and was unfair. He should have been given a final written warning.”
Therefore, he won his unfair dismissal and wrongful dismissal claims. He was awarded £5,138.28 for his notice pay, £5,210.64 for the basic award, and £10,172.43 as compensation for financial losses (including loss of statutory employment rights). In total, he received £20,521.35.
Key learning points
While you might assume that sleeping at work is so serious it always warrants dismissal for gross misconduct, this case illustrates that the issue isn't so clear-cut. All the circumstances need to be considered and weighed carefully because context is key.
Despite reaching the wrong conclusion, the employer in this case followed a fair procedure. It carried out a thorough and balanced investigation where the employee was given all the evidence, invited to provide an account of his actions, and his explanations were followed up.
It also serves as a useful reminder to check your disciplinary policy. It will usually list examples of misconduct and gross misconduct, so check to make sure that it reflects behaviours that are particularly relevant to your organisation.
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