Public transport delays

Regular rail commuters will not be surprised to learn that the rail regulator’s report reveals that almost 400,000 passengers face daily delays in their journeys. The situation was not helped by the summer floods, and most recently London witnessed travel chaos once again during the RMT union’s tube strike. And for employers, staff lateness and absence can seriously affect productivity and efficiency.

Q We have some staff who regularly arrive late. What steps can we take to manage this?

A You could introduce a lateness policy. This would spell out the standards of time-keeping you expect from your employees, as well as the consequences of persistent lateness, which will include disciplinary action under your disciplinary procedure. You should ensure the policy is properly communicated to employees, and enforced in a consistent fashion. If workers know that lateness will be noticed and investigated by management, they will be much more likely to observe good time-keeping.

Q Should we always use the disciplinary procedure if workers are persistently late?

A If the problem becomes serious, then use of the disciplinary procedure will be necessary, but persistent lateness is an issue that can often be resolved informally, rather than through formal disciplinary proceedings.

Take the time to have a private conversation with an employee, highlighting and discussing the issue, and warning the employee that if the problem continues they could face disciplinary action – that should be the end of it. If not, you can use the disciplinary procedure. However, it would be advisable to keep some evidence of the informal conversation, such as a file note, or a follow-up memo to the employee.

Q We want to dismiss an employee who has been persistently late without good reason and has received previous warnings. Can we dismiss them without notice?

A Even if you have been through a full disciplinary process involving previous warnings, and the employee’s time-keeping has not improved to the extent required, you will probably have to give them notice (or possibly pay in lieu).

You can only dismiss workers without notice if they are guilty of gross misconduct. Lateness is almost certainly not serious enough to be counted as gross misconduct, although lying about the reasons could be. At the dismissal stage, you should follow the statutory disciplinary and dismissal procedure, as well as your own disciplinary procedure.

Q Can we still insist that staff arrive on time even when we know they are likely to face commuting difficulties – for example, when a strike is planned?

A You need to be realistic about the difficulties that some workers will face – for example, those with long train journeys on lines that are suspended. Good communication is important, and you should ask employees to notify you if they are likely to have particular difficulties, so that you can discuss this. Usually there are practical solutions available, such as temporary homeworking, a change in working hours, the use of annual leave on strike days, and arranged accommodation. Plan in advance to ensure that client/customer service is not disrupted.

Q Can we withhold pay when employees are late?

A This will depend on the circumstances, including the terms of your contracts and policies. In any event, you cannot simply withhold pay (which will amount to a ‘deduction from wages’) without the worker’s pre-existing consent. This would usually be contained in their employment contract.

Q Can our employees insist on working from home when bad weather or other problems affecting the transport network make it difficult for them to get to work?

A No, not unless they have the right to choose as and when they come into work under their contract or company policy (which would be rare).

Q Are we entitled to monitor our employees’ times of arrival and attendance records?

A You are entitled to monitor attendance records, including arrival and departure times, but you should remember that employee monitoring falls within the remit of the Data Protection Act. Covert monitoring is only permitted under the Act in very exceptional circumstances, and in a case like this, you should ensure that the monitoring is provided for under your contracts or handbook.

Andreas White, solicitor in the employment team, Kingsley Napley


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