Is it appropriate to dismiss an Army reservist for time off to take part in voluntary activities?
In this case, the Employment Appeal Tribunal (EAT) ruled that an employee, who was an Army reservist, was not unfairly dismissed after declaring his intention to take seven weeks of leave to attend a voluntary training exercise.
The claimant, Mr Hawkes, worked as a business development manager for Ausin Group from September 2015 to August 2016. Prior to joining the business, Hawkes made his employer aware of his role as an Army reservist and successfully negotiated an extra week’s unpaid leave for voluntary activities as part of his contract. The claimant also made the employer aware that he could be called up for mandatory active service as part of this commitment.
In June 2016, Hawkes applied, and was accepted, for a voluntary seven-week Army training exercise in California. When informing his employer of this, the claimant failed to mention that it was voluntary which led them to believe it was a request for mandatory active service that they were obliged to accept.
Before Hawkes was set to attend the training exercise, the employer took a further look into his obligations as an Army reservist and discovered that the training was voluntary. When this point was raised to him Hawkes confirmed that he was committed to attending the training regardless of his employers concerns.
In August 2016 Hawkes was informed that his role was being made redundant, as the business could not accommodate his absence. His employer added that they did not expect his commitment to the Army to be so significant before reiterating that they would not have approved his request for seven weeks’ leave if they had known from the outset that it was voluntary. Hawkes was ultimately made redundant and paid in lieu of notice.
After being made redundant Hawkes lodged a claim with an employment tribunal (ET) for unfair dismissal. The ET agreed that, despite lacking the required two years’ continuous service, Hawkes was able to bring this claim due to his protected role as an Army reservist. However, the ET held that the employer’s decision to dismiss was fair as his seven-week absence for a non-mandatory activity was considered to be a substantial reason for dismissal.
Hawkes proceeded to appeal this ruling with the Employment Appeal Tribunal (EAT) raising the point that in his view, his employer’s failure to hold a meeting with him prior to dismissal was unfair. When assessing this point, the EAT determined that there was no reason to hold an additional meeting as this dismissal was not conduct related but rather due to some other substantial reason (SOSR). They also added that another meeting would have made no difference as Hawkes had already decided, and made clear, that he would be attending the exercise despite the employer’s wishes.
Whilst employee disputes with Army reservists may be few and far between, the ruling of this case highlights the distinct differences between a dismissal for conduct and SOSR. Although on this occasion it was ruled that an additional meeting was not required, due to the claimant’s clear commitment to attending the training exercise, employers are reminded that it is best practice to hold a meeting with employees before making any dismissal decision. This will ensure organisations are able to maintain good records of any conversations which may prove decisive during tribunal proceedings.