Case Studies: Commercial

A Cautionary Tale – Employees With Less than 52 Weeks Continuous Service

O’Reilly Stewart have acted on behalf of a hardware wholesale Company in respect of a claim lodged in the Industrial Tribunal by a former employee for unfair dismissal and detriment following a request for leave for family reasons / time off for dependants.

The Claimant commenced employment with the Respondent in August 2015 as General Manager / Operations Manager. After a number of months, it was evident that the Claimant would be better suited to sales. The Claimant was moved into a sales only role on the same salary.

During her employment, the Claimant took time off for various reasons relating to her parents’ illnesses. In the weeks before her dismissal, the Claimant applied for a number of day’s annual leave in order to take her mother to hospital.  The Respondent was aware that the Claimant’s mother was seriously ill and agreed to the leave without issue. The Claimant returned to work for 5 days before requesting a further day off as unpaid leave.

The Respondent intended to carry out an appraisal following completion of the Claimant’s probationary period. The appraisal did not take place due to the leave taken by the Claimant to look after her parents. When a meeting was finally organised, the appraisal did not take place. The Respondent mentioned the Claimant’s need for time off and dismissed the Claimant. The Claimant had not been employed for 52 weeks when she was dismissed. The Respondent did not follow the statutory dismissal procedure. A letter of dismissal was handed to the Claimant following the meeting listing poor work performance and general unsuitability and the Claimant’s absence as the reasons for the dismissal.

The Tribunal noted that there were concerns in respect of the Claimant’s performance. However it was also noted that no disciplinary, warning or other meetings were held with the Claimant to make her aware of the performance criticisms. The Claimant had no appreciation or awareness of the concerns.

The Tribunal made the following conclusions in respect of the claim: –

  1. The Claimant’s claim that she was subject to detriment following a request for leave for family reasons / time off for dependants was dismissed
  2. The Claimant was not unreasonably refused time off and the claim was dismissed.
  3. The Claimant was automatically unfairly dismissed:
    • The Tribunal found that the principle reason for the dismissal was the Claimant’s required time off.
    • A Polkey reduction was ordered on the acceptance that the performance issues were unlikely to be resolved and would have resulted in her dismissal within a short period.
    • Despite the Claimant not being employed for the requisite 52 weeks, an uplift of 25% was ordered to reflect the Respondent’s failure to comply with dismissal procedures.
    • A 50% contributory fault deduction was ordered by the Tribunal to reflect the Claimant’s failure to address her performance issues.
    • The Judge ordered that the Respondent pay the Claimant the sum of £2,066.25
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