Mr F Mohammad v Represented by Mrs A Fox Solicitor HM Custom and Revenue — 2019

Mr F Mohammad was employed by HM Customs and Revenue from 18 May 2015 as a customer service consultant at the Dundee contact centre. The tribunal found that the flexible working hours scheme placed responsibility on both employee and manager to keep flexi records up to date, record time accurately, and stay within the permitted credit and debit limits. The claimant had health issues and medical appointments, but the tribunal found that the scheme was explained at induction and was a matter of common discussion among staff.

The tribunal found that by July 2017 the claimant was already in a flexi deficit of 35.02 hours. Natalie Mitchell told him not to take further flexi leave and said a meeting would be arranged, but no repayment plan was put in place by John Shields. The tribunal also found that when the claimant was managed by Justine Davie in November 2017 she asked for his updated flexi sheet and offered to help him catch up. By 28 March and 3 April 2018 the claimant had still not completed flexi sheets since July 2017, and Natalie Mitchell calculated a deficit of over 60 hours using flexi records, SOSO records and leave information.

Gary Burns investigated and concluded there was not sufficient evidence to support disciplinary action, recommending instead that a repayment plan be set up and that the claimant be suspended from the flexi scheme for 12 months. Leigh-Jayne Robertson nevertheless decided there was a case to answer, noting a flex deficit exceeding the limit and that the claimant was on a live final written warning. After the disciplinary hearing she concluded that the claimant had committed repeated misconduct and dismissed him on 24 July 2018. The tribunal accepted that there had been management failings, but found that the claimant had also failed to keep records up to date, seek approval for time off, and make proper use of the assistance offered.

The tribunal applied the Burchell approach and section 98(4) ERA 1996, together with the range of reasonable responses test. It held that the respondent had a genuine belief on reasonable grounds that misconduct had occurred, that the investigation was within the range of reasonable responses in the circumstances, and that dismissal was a reasonable sanction given the admitted misconduct and the live warning. The tribunal also found that refusing to hear the appeal because it was lodged one day late, under the respondent's 10-day appeal rule and absent exceptional circumstances, was not procedurally unfair. The unfair dismissal claim was therefore dismissed.