The quick answer to the above may in many cases come down to an “elephant test” – you’ll know it when you see it. However..... 
A recent Employment Appeal Tribunal decision provided a good example of what would count, notably in the overall context of having to be ready for work from the time employees are being paid. 
Employee T received a first written warning for being late on 17 out of 20 days. Four months later, her lack of improvement led to a final written warning. She did not challenge it. In the subsequent 9 months, she was late on 43 further occasions, between 2 and 30 minutes, and her employer concluded following a disciplinary hearing that there had been no pattern of improvement. 
Open and shut, some might think. Evidently not. T sought to appeal, arguing that it was “not properly informed” and “speculative” for the tribunal to treat poor timekeeping as a conduct issue. She persisted in arguing that others with an equivalent or worse record than her had been treated differently, but provided no named comparators. 
The EAT upheld the tribunal’s decision. Perhaps the most useful point for employers faced with poor timekeeping of a “boundary pushing” nature was the EAT’s view that lateness instances of a few minutes were not to be disregarded simply for being trivial in isolation. “Present and ready for work, on time” is still paramount. There is no need for an employer to explain how “two or three minutes here or there” had an impact upon its business. 
We may still ask ourselves how any employee already on a final written warning for the same shortcomings could have thought that dismissal fell outside the range of reasonable responses when there was plainly no pattern of improvement. However, the need to address these issues sensibly will never go away, and good record keeping will nip many such problems in the bud. 
Tijani v House of Commons Commission, [2022] EAT 104.  
Have you an employee lateness issue that needs addressing before it gets out of hand? Give us a call. Contact David Cooper via or via 0121 325 5402. 
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