If someone told you that a CCTV operator was caught asleep on duty, lied about it, didn’t attend their Tribunal Hearing, and still won their unfair dismissal claim – you’d probably raise an eyebrow. However, that is exactly what happened in Mr C Okoro v Bidvest Noonan (UK) Ltd.
This Employment Tribunal decision is a sharp reminder that in employment law, proportionality matters just as much as the misconduct itself.
The Facts – 16 years of service vs a 15-minute nap
The Claimant, Mr Okoro, had worked for his employer for over 16 years. He was a CCTV controller on his sixth consecutive night shift. He was supposed to be monitoring the security cameras of a shopping centre, which was a client of his employer.
However, during a spot check, a manager found him sleeping on the job and ironically, they had the evidence of him sleeping on CCTV.
He was invited to an investigation meeting where he denied sleeping, claiming he was meditating or resting his eyes due to a medical condition. The Tribunal found these explanations to be untrue.
The employer continued to be reasonable in their investigation by referring him to Occupational Health. Despite engaging in the assessment, the claimant denied the employer access to its findings.
He was dismissed and did not appeal the decision internally but rather lodged an Employment Tribunal claim. On the morning of the hearing, he requested a postponement, which was refused and the hearing proceeded in his absence.
The Legal Test: Burchell and the Band of Reasonable Responses
The Tribunal applied the well-known Burchell test, which poses:
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Did the employer genuinely believe the misconduct occurred?
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Were there reasonable grounds for that belief?
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Was the investigation reasonable?
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Was the decision to dismiss within the band of reasonable responses?
The first three were satisfied. But it was the final question that tipped the scales in the claimant’s favour.
Why the Dismissal Was Deemed Unfair
The Tribunal concluded that while the misconduct was serious, dismissal was outside the band of reasonable responses. A final written warning would have been more appropriate.
The Tribunal noted that there were compelling arguments on either side:
| In Favour of Dismissal | In Favour of Retention
(Final Written Warning) |
| Security risk: The claimant was solely responsible for monitoring CCTV and fell asleep, compromising site security. | Mitigating context: The claimant had 16 years of unblemished service. He inadvertently fell asleep for a short time, and the shopping centre was closed – no harm occurred as a result. |
| Contract risk: The employer believed the lapse could jeopardise their contract with the client. | Policy gap: The employer’s disciplinary policy didn’t list “sleeping on duty” as gross misconduct. The employer claimed a newer version did, but they did not submit this version in the evidence bundle. |
| Dishonesty: The misconduct was intensified by the claimant lying about the incident. | ACAS Code comparison: The Tribunal noted that gross misconduct typically involves wilful or serious misconduct not isolated negligence with no major consequences. |
It was found that the facts of this case were ‘closer to the less-serious end of the spectrum, principally because his actions were involuntary, not wilful.’
The claimant was awarded £20,521.35.
Key Takeaways for Employers and HR Teams
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Follow a fair process – but also ensure the outcome is proportionate.
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Update and submit the correct policies – especially if you’re relying on them to justify dismissal. Policies are not just a paper exercise, making sure they are tailored to the needs of the business is key. Comparing bespoke policies with the ACAS code can help to clarify grey areas.
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Context matters – Long service, especially with unblemished records, should have bearing on the employer’s decision regarding misconduct.
How Farleys Can Help
At Farleys Solicitors, we specialise in employment law and HR support for businesses. We offer practical legal advice in a straightforward manner ensuring any employment law issues can be dealt with in an efficient way, allowing you to focus on your business. For confidential advice, please contact us on 0845 287 0939 or get in touch by email.
