Royal Marines reservist fired after requesting seven weeks off for training loses appeal

EAT agrees decision to dismiss was within band of reasonable responses

A Royal Marines reservist who was fired by his employer for taking seven weeks of leave to attend a voluntary training exercise was not unfairly dismissed, the Employment Appeal Tribunal (EAT) has ruled

The EAT, upholding a July 2017 tribunal decision, found the previous judge had correctly assessed the dismissal’s fairness when reaching its decision. 

Mr A Hawkes worked from September 2015 to August 2016 as a business development manager for Ausin Group (UK), a property and investment service company. 

When interviewing for the role, he explained he was a volunteer reservist with the Royal Marines. As this required him to undertake 28 days' training a year, he successfully negotiated an additional week’s unpaid leave as part of his contract, although he needed to obtain the approval of his manager, Alexandra Stuart-Robertson, or another senior staff member ahead of taking holiday. Hawkes also told Ausin he could be called out for active service.  

In June 2016, Hawkes put his name down for a seven-week voluntary training exercise in California. If accepted, he would be required to sign an additional commitment form which obliged him to attend. He asked Stuart-Robertson for five days off to attend an initial shooting exercise and seven weeks between August and October. However, he did not say the exercise was voluntary, and she interpreted it as a request for active service, which the organisation was obliged to accept. 

Hawkes successfully completed his training application, but in the interim, Stuart-Robertson researched his obligations and discovered the exercise was voluntary. She expressed concern that when he had first raised his need for leave, he had presented it as compulsory. Hawkes made it clear that he would attend the training regardless of her concerns. 

On 5 August, Stuart-Roberston told Hawkes his role was being made redundant, as the branch could not accommodate his absence, and it had not expected his commitment to the Marines to be so significant. She added that the company would not have approved seven weeks’ leave if he had been clear that he had been making a request for voluntary training. Hawkes’ employment was then terminated.  

Hawkes lodged proceedings with London Central employment tribunal in April 2017 saying he had been unfairly dismissed, but it found his seven weeks of absence was a substantial reason for terminating his employment. It also found that, while Ausin did not hold a meeting with Hawkes before deciding to dismiss him, his commitment to the exercise made the employer’s response reasonable, as an additional meeting would not have changed either decision. The EAT found the tribunal had correctly applied the band of reasonable responses under the Employment Rights Act 1996.

However, Paul Holcroft, associate director at Croner, reminded employers that the courts would take account of all the circumstances when assessing the fairness of a dismissal decision and, even though the employer here had not held an additional meeting, it remained advisable to do so.

“Although, on the facts of this case, a meeting would not have affected the fairness of the dismissal because of the employee’s firm commitment to undertake the period of training, it remains best practice to hold a meeting with an employee before making a dismissal decision, as required in certain types of dismissals by the Acas Code of Practice,” he said. 

“Holding a meeting and asking appropriate questions will ensure the employer has all relevant information before they make the final dismissal decision – placing them in the strongest position to show a dismissal was reasonable in all the circumstances.” 

People Management was unable to reach Hawkes or Ausin Group (UK) for comment.