UNFAIR DISMISSAL - 19.11.2020

Fairly dismissed over 25 unaccounted for hours

An employee who was sacked because he couldn’t account for 25 of his working hours over a three-week period has lost his claim for unfair dismissal. Why did the tribunal rule in the employer’s favour?

Road to nowhere

John Carroll (C) had been employed as a highways inspector by Hartlepool Borough Council (H) since 1999. It was acknowledged by H that, save for the events which led to his dismissal, C had an unblemished disciplinary record.

C mainly worked alone, undertaking routine and emergency highways inspections, and was considered to be highly experienced.

Jamming up

In 2017 H noticed that there was a backlog of highways inspections and gaps in the electronic charts which tracked C’s movements when he was carrying out his duties. A decision was taken to monitor the situation.

H quickly discovered that there were repeated and regular hours within C’s working day that weren’t accounted for and his whereabouts couldn’t otherwise be established.

Sample working pattern

H collated data over a three-week period and put this to C. He was unable to say where he was or what he was doing for at least 25 hours over that same period.

This equated to one and a half hours per day. C claimed that he could have been “doing anything“ during those hours, but offered no explanation or reason whatsoever.

H subsequently dismissed C for gross misconduct. C appealed against H’s decision internally and, when he lost, then claimed unfair dismissal at the tribunal.

Gross misconduct

C gave evidence stating that his volume of work had increased when H reduced the number of highways inspectors and his working activities often blended into one.

He also pointed to the fact that he had never been instructed to keep any explicit records by H.

Reasonable employer

The tribunal felt that it would be unreasonable for C to have to justify, or record, or every minute of his working day but it was unacceptable that he could not provide any account whatsoever for the 25 missing hours (see The next step ).

It has now ruled that this failure was a serious breach of trust and a repudiatory breach of contract. That entitled H to dismiss C for gross misconduct and his dismissal was perfectly fair.

Tip. This case shows that you can reasonably expect employees to explain how they are spending their working day, whether they are on your premises or working from home. Unexplained missing hours can be grounds for dismissal.

Tip. To justify a dismissal, the amount of unexplained working time must be significant - the odd few minutes here and there won’t be enough. Also, the timeframe you are looking at must be recent; memories fade over time. If you are concerned about how an employee is spending your time, raise the issue quickly.

The tribunal held that the employee’s failure to account for 25 working hours was a serious breach of trust and the contract so the employer could dismiss for gross misconduct. You can reasonably expect an employee to explain what they do during their working day. If you have any concerns, raise them immediately.

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