Where an employee has been dismissed for asserting a statutory right, which includes the statutory right to take a reasonable amount of unpaid time off for dependent leave, they do not require the usual 2 years’ minimum employment service to bring a claim for unfair dismissal. A dismissal in that circumstance will be automatically unfair.
The right to take a reasonable amount of time off to deal with an emergency involving a dependent is one that should not be overlooked by employers dealing with absence requests. This right is widely defined in the legislation, as a dependent could mean a spouse, partner, child, grandchild, parent or someone who depends on the employee for care who is not a relative.
The employee in this case had been employed as a machine operator. His partner was pregnant and had some health issues. Following her routine antenatal appointment, she was told to attend an emergency hospital appointment.
This presented a childcare problem for them in terms of taking their child to school and the employee wanted to be able to support his partner at the appointment. He submitted a request to take the day off as holiday, but this request was refused.
The employee sent in further requests for time off, explaining it was because of childcare issues and asked if he could be allowed unpaid time off if not holiday. No response was received and on the morning of the appointment he telephoned his employer to confirm that he would not be able to attend work that day.
When he returned to work the following day, he was called to a disciplinary hearing due to unauthorised absence and insubordination. It was decided that no action would be taken. However, five months later he was called to another disciplinary meeting and dismissed. His manager took the decision to dismiss the employee on the spot as the employee did not yet have 2 years’ service. The reasons cited for his dismissal in his dismissal letter included smoking, returning late from breaks, using a mobile phone and taking drinks onto the factory floor and not following procedures or providing sufficient notice before taking time off. In other words, the statutory right to time off for dependents was part of the reason for the dismissal.
The employee, who had less than two years’ service at the time of his dismissal, claimed that the dismissal was automatically unfair. The employer in this case was a small business. It had never had anyone take dependents’ leave before the employee’s request.
The employment tribunal decided that the employee had been unfairly dismissed on the grounds that the primary reason for his dismissal reason was that he had taken time off work to care for a dependent.
The tribunal found that the employee had complied with the statutory requirements in respect of exercising his right to take time off for this reason in that he had made the request to take leave as soon as possible and informed the employer of where he was when absent.
While the initial disciplinary hearing had not resulted in action being taken, the incident had not been forgotten by his manager and it was expressly referred to in the letter of dismissal.
When giving evidence at the tribunal hearing the employee had admitted smoking at the factory gates from time to time and admitted using his phone on the factory floor, as well as the fact that there was friction between him and his line manager. However, he was adamant that he had not been spoken to in a disciplinary sense about those matters and had not had disciplinary sanctions imposed on him until his letter of dismissal.
Based on the evidence, the tribunal concluded that the other reasons put forward for dismissal had lacked credibility given that other employees had not been dismissed for smoking or mobile phone use on the premises. The employee was awarded just over £8,000 by the tribunal as compensation for the unfair dismissal. This award included a 20% uplift to the award for the employer’s failure to follow a fair procedure by failing to give notice of the dismissal meeting and the failure to hold a fair appeal hearing.
For further information on dealing with domestic/ dependent leave please contact me on 07929506143.