Export clerk dismissed for persistent hours shortfall: dismissal fair despite comparator treatment
A tribunal has upheld the dismissal of an export clerk who repeatedly failed to work his contractual hours, finding the employer's decision was within the range of reasonable responses.
1 min read · Last updated 18 May 2026
Case details
- #gross-misconduct
- #working-hours
- #swipe-card-data
- #comparator-treatment
- #race-discrimination
- #religion-discrimination
Key facts
- The claimant worked as an export clerk from 5 June 2017 until dismissal on 22 February 2022.
- In January 2022, the claimant's team leader discovered the claimant was not working his contractual hours, with a shortfall of over 49 hours in three weeks.
- The claimant received a verbal warning by email on 21 January 2022, but left work 7.5 hours early that same day without permission.
- At the disciplinary hearing, the claimant admitted he had no defence and that the previous 12 months would show the same pattern.
- The claimant's comparator, a colleague of Indian Punjabi origin, also had a shortfall of 70 hours but received a final written warning due to no prior warnings.
- The tribunal found the dismissal was within the range of reasonable responses and not due to race or religion.
Timeline
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Employment started
Mr Hossain began employment as an export clerk with UPS SCS UK Limited.
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First hours issue
Mr Robinson discovered Mr Hossain was logging in late; spoke to him and said it was 'in essence stolen' time.
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Second discussion about hours
Mr Robinson spoke to Mr Hossain about leaving early; clarified he must be on site for contracted hours.
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Verbal warning sent
Mr Robinson emailed Mr Hossain a verbal warning about working 49 hours short in three weeks; Ms Matthews also emailed warning of possible dismissal.
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Left work early after warning
Mr Hossain left work at 11:37pm, 7.5 hours early, on the same day he received the verbal warning.
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Investigation meeting
Mr Robinson held an investigation meeting; Mr Hossain admitted 'I have no defence'.
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Disciplinary hearing and dismissal
Ms Matthews held a disciplinary hearing and dismissed Mr Hossain for gross misconduct.
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Appeal hearing (first part)
Mr Parkinson heard Mr Hossain's appeal and paused to investigate his concerns.
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Appeal hearing (reconvened)
Mr Parkinson dismissed the appeal, upholding the dismissal.
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Claim presented
Mr Hossain presented his employment tribunal claim.
The legal issue
The tribunal had to decide whether the claimant was unfairly dismissed for misconduct and whether the respondent directly discriminated against him because of his race (Bangladeshi origin) or religion (Muslim).
The outcome
The tribunal dismissed all claims, finding that the dismissal was fair and there was no discrimination.
- The employer had a genuine belief in the claimant's misconduct based on swipe card data showing a shortfall of over 49 hours in three weeks, and the claimant admitted he had no defence.
- The investigation was reasonable, and the procedure was fair, including a disciplinary hearing and an appeal.
- The claimant's comparator, a colleague of Indian Punjabi origin, received a final written warning rather than dismissal, but the tribunal accepted the respondent's explanation that this was due to the comparator having no prior warnings, whereas the claimant had previous verbal warnings about hours.
- No compensation was awarded.
Lessons & takeaways
- Employers can rely on swipe card data to evidence hours worked, but should ensure employees are aware of the monitoring and any shortfalls are addressed promptly.
- Previous warnings about the same issue can justify a more severe sanction for a subsequent breach, even if a colleague with no warnings receives a lesser penalty.
- A claimant's admission of no defence at the investigation stage can significantly weaken a later claim of unfair dismissal.
- Comparators for discrimination claims must be in materially similar circumstances; different disciplinary histories can justify different outcomes.
What this case shows in practice
This case illustrates how employers can fairly dismiss an employee for persistent failure to work contractual hours, provided they follow a proper process. The claimant, an export clerk with nearly five years' service, had been spoken to about his hours on two previous occasions. When swipe card data revealed a shortfall of over 49 hours in three weeks, the employer issued a verbal warning. On the same day, the claimant left work 7.5 hours early without permission. At the investigation meeting, he admitted he had no defence and that the previous 12 months would show the same pattern.
What the employer did right
The employer conducted a reasonable investigation, held a disciplinary hearing, and gave the claimant the opportunity to appeal. The decision-maker genuinely believed the claimant was guilty of gross misconduct, and the tribunal found that belief was reasonable. The claimant's admission of no defence made the employer's task easier, but the case shows that even without such an admission, a clear pattern of conduct supported by objective data can justify dismissal.
Why the result matters for similar claims
The claimant also alleged race and religion discrimination, arguing that a colleague of Indian Punjabi origin who had a 70-hour shortfall received only a final written warning. However, the tribunal accepted the employer's explanation that the comparator had no prior warnings, whereas the claimant had two previous discussions about his hours. This highlights that comparators must be in truly similar circumstances; different disciplinary histories can justify different outcomes. For employees considering a discrimination claim, it is crucial to identify a comparator whose situation is materially identical in all relevant respects.
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