Dismissal of military reservist was fair

Hawkes v Ausin Group (UK) Ltd

A volunteer reservist was fairly dismissed for committing to a seven-week training exercise without obtaining his employer’s approval.

From 1 October 2014, where an employee is dismissed exclusively (or mainly) because he/she is a member of a reserve force, the normal two-year qualifying period doesn’t apply. However, unlike other claims for automatically unfair dismissal, e.g. whistleblowing, employers can still argue that the dismissal was fair – the only difference is the claimant does not need continuous service to bring their claim.

Background

Mr Hawkes, a Royal Marines volunteer reservist, had worked as a manager for his employer, a small investment business, for less than two years. His employer knew that he needed to carry out 28 days’ military training a year and his contract provided for one week’s unpaid holiday per year to go towards meeting his reservist commitments. Mr Hawkes signed up (voluntarily) for a seven-week overseas call up. He informed his employer that he would need seven weeks’ leave to complete the call up. After some enquiries, his employer discovered that the call up wasn’t mandatory and did not want him to go ahead with it as it was an absence they couldn’t accommodate. Once they realised he’d chosen to go, despite the call up not being mandatory, they invited him to a meeting where he was dismissed and paid in lieu of notice.

A tribunal decided that the dismissal was connected to his status as a volunteer reservist and so it had jurisdiction to hear the claim. But it held that the reason for the dismissal was because Mr Hawkes was going to be absent from work for seven weeks at a crucial time for the business and that the employer could not sustain such an absence. Therefore, it was not related to his conduct and was properly classified as a some other substantial reason (SOSR) dismissal. It held his dismissal to be fair.

The tribunal then had to consider whether holding a meeting beforehand would have made a difference. It considered that Mr Hawkes had already decided he was going and even if he had been warned that he would be dismissed if he insisted on going to the exercise, he would not have changed his mind.

It then had to decide if it was fair in all the circumstances and it considered that he had not discussed the matter with his employer before putting his name down for the training. He first informed his employer of it in passing and had conveyed it as something that was mandatory when in fact it was only a voluntary course. There was nothing in the evidence to indicate that holding a meeting before the decision to dismiss was made would not have made any difference to the outcome. Mr Hawkes appealed.

EAT decision

The EAT dismissed his appeal.

The tribunal had in mind the correct test (under s. 98(4) of the Employment Rights Act) when considering the question of fairness and had applied that test correctly.

Mr Hawkes argued that his employer’s failure to meet with him before dismissing him and paying him in lieu was unfair. Not so said the EAT. It would have been wholly artificial for the tribunal to deal with fairness without considering what effect that failure had on the fairness of his dismissal. Far from considering the hypothetical question of whether there would have been any difference to the outcome if a meeting had been held, the tribunal had focused on whether the failure to hold a meeting before the decision was made rendered the dismissal unfair. Furthermore, the tribunal had made an express finding of fact that by the time of the dismissal meeting, Mr Hawkes had already decided that he would be attending the exercise.

This was not a misconduct case where it would usually be considered necessary to hold a meeting to consider the employee’s explanations. This was a SOSR dismissal and, in that context, it was open to the tribunal to make a finding of fact that an earlier meeting would not have changed the position because of the Mr Hawkes’ firm commitment to the exercise.

Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2018/0070_18_1406.html

Comment

There is obviously a fine line between conduct matters and some other substantial reason and here the tribunal found, as a matter of fact that it was SOSR. In those circumstances it was then able to conclude that a meeting would have made no difference. Employers would generally be advised to hold a meeting rather than leave this question to a tribunal to decide.