And speaking of cold wake ups brings me to the case of Okoro v Bidvest Noonan (UK) Ltd, in which the Employment Tribunal considered whether the reasonable response to finding an employee asleep at work was dismissal.  

Mr Okoro had been employed as a CCTV controller by Bidvest Noonan (UK) Ltd since 2006. He had over 16 years of continuous service and a clean disciplinary record. In September 2022, during a routine spot check carried out by Mr Okoro’s manager, he was found sleeping in the control room during his shift.

Mr Okoro was invited to an investigation meeting where the CCTV footage was played and showed he had fallen asleep for approximately 15 minutes. When questioned, Mr Okoro denied he had been sleeping and explained he had closed his eyes to relieve eye strain from the monitors and to "meditate and think”.

The employer referred Mr Okoro to Occupational Health for an assessment, but Mr Okoro refused consent to allow the sharing of the outcome with his employer.

Mr Okoro was invited to a formal disciplinary hearing where gross misconduct was cited and he was summarily dismissed. Mr Okoro did not appeal the decision but brought a claim for unfair dismissal before the Employment Tribunal.

The ET accepted that the employer had followed a fair process and met the requirements set out in BHS v Burchell in that it held a reasonable belief, following a reasonable investigation, that Mr Okoro was guilty of gross misconduct. The ET also had to consider whether Mr Okoro’s dismissal fell within the range of reasonable responses in the circumstances.

The ET found the decision to dismiss Mr Okoro was outside the range of reasonable responses open to a reasonable employer in the circumstances. It noted that while the incident was not insignificant, it had to be considered in light of Mr Okoro’s long and unblemished service, as well as the context in which Mr Okoro had fallen asleep, specifically that it occurred during his sixth consecutive night shift.

The ET concluded that a final written warning would have been a more appropriate and reasonable disciplinary outcome. As a result, the ET held that Mr Okoro had been unfairly dismissed and awarded him compensation exceeding £20,000.