One of the most common mistakes for an employer to make is to think that an employee has to always have at least two years’ service to bring a claim for unfair dismissal. Yes, generally an employee will need to have at least two years’ service but there are exceptions, and when those apply it will often be the case that the dismissal is deemed to be automatically unfair.
One of those exceptions is where the employee has been dismissed for asserting a statutory right, which includes the right to take time off for dependent leave. In Jewell v Stax Coverting the employment tribunal considered the circumstances when that statutory right might apply and whether it had been shown that the dismissal had been for that reason.
Mr Jewell had been employed as a machine operator. His partner was pregnant and had some health issues. On 5 October, following her routine antenatal appointment, she was told to attend an emergency hospital appointment on 8 October.
This presented a childcare problem for them and, in any event, Jewell wanted to be able to support his partner at the appointment. He submitted a request to take Monday off as holiday, but was told that his request had been refused.
Jewell 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 Monday morning he telephoned the 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 in relation 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. The reasons cited included smoking, using a mobile phone on the premises and not following procedures or providing sufficient notice before taking time off.
Jewell, who still had less than two years’ service, claimed that the dismissal was automatically unfair.
It was held that Jewell had been unfairly dismissed on the grounds that the primary reason was that he had taken time off work to care for a dependant.
Jewell had complied with the statutory requirements in respect of exercising his right to take time off in that he had made the request to take leave as soon as practicable 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.
The other reasons put forward for dismissal had lacked credibility given that others had not been dismissed for smoking or mobile phone use on the premises.
The decision is a reminder of the importance of taking into account that employees have statutory rights that apply from day one of employment. The right to take a reasonable amount of time off to deal with an emergency involving a dependant is one that should not be overlooked. This right can have a wide application as a dependant could mean a spouse, partner, child, grandchild, parent or someone who depends on the employee for care.
Employers should take a cautious approach when deciding whether any sanctions should be imposed against an employee who has taken time off to provide support to someone.
Paul Ball is an employment partner at Gateley Legal