NO XSCAPE?
A wake up call for employers when dismissing for gross misconduct
In a recent remedy judgment, an employment tribunal has awarded a CCTV security officer over £20,000 in compensation after ruling his dismissal for falling asleep on duty was unfair. Crucially, the Tribunal considered that the sanction of dismissal was too harsh; this is therefore a useful reminder of the ‘band of reasonable responses’ test and the importance of context, service and previous disciplinary record.
Mr C Okoro, who had been employed for more than16 years by Bidvest Noonan and who had a clean disciplinary record, was summarily dismissed for gross misconduct following an incident on 1 September 2022. He was found to apparently be asleep at his workstation for a period of 15 minutes at around 5am during a night shift at the Xscape shopping centre in Milton Keynes.
However, the Cambridge Employment Tribunal found that the dismissal fell outside the range of reasonable responses open to a reasonable employer and instead felt that he should have been given a final written warning.
“The judgment highlights the importance of context and proportionality when reaching the decision to dismiss and the significance of long service, clean disciplinary records and mitigating circumstances in disciplinary cases.”
Okoro denied sleeping and claimed instead that he was meditating and resting his eyes due to a medical condition causing dryness. He produced medical evidence in support of this. Nonetheless, the tribunal found, based on CCTV footage and contemporaneous witness evidence, that he had in fact been asleep.
Although the employer argued that sleeping on duty constituted gross misconduct, the tribunal noted that the disciplinary policy relied upon at the hearing did not include sleeping on duty as an expressly listed example of gross misconduct. The operations manager had claimed that a different version of the policy—one that included this wording—applied, but this version was not included in the bundle, and the tribunal preferred the evidence available.
The panel accepted that Okoro had been working his sixth consecutive night shift at the time of the incident and that his conduct, while potentially serious, was not intentional or calculated. The Tribunal commented that the seriousness of conduct was often on a spectrum and that there was a difference between‘deliberately leaving one’s post and sneaking off to a secluded part of the premises to take a nap a one extreme, and momentarily nodding off for a few seconds with few if any consequences at the other’.
They also acknowledged that there had been no adverse consequences as a result of the lapse and that the Xscape premises was closed at the time, resulting in no loss or damage to the Respondent. Importantly, a big factor was also that the claimant had an unblemished disciplinary record over his 16 years of service. While the incident posed a potential risk to the employer’s service obligations, the panel concluded that a final written warning would have been a more appropriate sanction in the circumstances. Judge Conley stated: “The seriousness of falling asleep on the job is something that very much depends upon its context.”
The tribunal found that the Respondent had conducted a reasonable investigation and genuinely believed misconduct had occurred. However, the decision to dismiss was not proportionate and was, therefore, unfair.
Okoro succeeded in his claims for both unfair and wrongful dismissal. He was awarded a total of £20,521, comprising £5,138 for notice pay, a basic award of £5,210, and £10,172 in compensatory damages for loss of earnings.
The judgment highlights the importance of context and proportionality when reaching the decision to dismiss and the significance of long service, clean disciplinary records and mitigating circumstances in disciplinary cases. It serves as a reminder that not all matters of significant misconduct—particularly where it is inadvertent and isolated—will justify summary dismissal and that lesser sanctions need to be carefully considered and may be more appropriate.
