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Does Pretending To Sleep On The Job Merit Dismissal?

Life in our office fairly often feels like a 21st century version of Alice in Wonderland. I am quite regularly asked to believe six impossible things before breakfast. I know we’re not the only ones who hear this stuff...... There was the lady who said she couldn’t return to work after her holiday because she had been captured by pirates, the man who couldn’t come to work because he was mourning that Zayne left pop band One Direction the employee who said he couldn’t come in because his false teeth had flown out the window while he was driving. My favourite excuse was the employee who said the ghost in his house kept him up all night. Should have taken a bit more water with it, I reckon.

Some of the things we have to deal with do cause the Russell eyebrows to shoot up a bit, but not much I hear shocks me. Such creativity keeps our job interesting and you just don’t know what particular piece of nonsense will pop out of the woodwork next. An article about a driving instructor caught my eye last week. It all took place in Carrow Road, Norwich, home of the Canaries. Laura Martin snapped a photo of a driving instructor who appeared to be asleep in a car driven by a leaner which had stopped at traffic lights. The photo was posted on Facebook and of course it attracted a certain amount of attention. The driving instructor said he was having a joke about ‘having a kip’ to try and break the tension. He pretended to be asleep and after closing his eyes for about ten seconds he snored. The aim was to make the young man in the driver’s seat laugh and help him relax. The instructor said the car was safe as the hand break was on and the gear in neutral.

No physical harm was done fortunately, though the instructor has complained his reputation has been left in tatters. The police decided not to take any action on the matter. Even if they were, an employer can run its own investigation and discipline independent of any police investigation. The burden of proof is much higher for criminal matters than employment law matters.

No comment has been made by the young man who was in the driver’s seat so it is the word of the driving instructor against what the passer-by says she saw. If this was an employed situation an employer must establish all the relevant facts in the first instance. In this case the instructor says he was pretending, the whole incident was a matter of seconds, there was in fact no loss of control and no significant risk. An investigating officer will need to establish whether there is a case to answer or not. If he believes there is, the way forward is normally to invite the employee to a formal discipline hearing.

The disciplining officer should be someone who has not been involved in the case so far. His role is to decide whether on the balance of probability the employee is guilty or not. If he decides the employee is guilty, then the disciplining officer must also decide what sanction is appropriate. Dismissal should be a last resort.

In these circumstances I would be asking questions about the employee’s health too. If it turns out that he has an underlying medical condition which causes him to fall to sleep then it may constitute a disability. If that is the case then an employer should be considering what reasonable adjustments can be made to allow the employee to continue working.

From the information we have seen it seems it was one person’s word against the other. The instructor may very well be telling the truth. While was really very ill judged to reduce the tension this way the action itself may not be enough to genuinely breach safety, though it’s certainly arguable that it brings the company into disrepute.

As is common in driving schools, the man in question was a contractor and not employed, He has been let go as a contractor with the company and is unlikely to be able to complain of unfair dismissal.

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