Welcome back, this week’s case is about unauthorised absences and victimisation. It is also a good example of an employer successfully appealing a tribunal decisions on the grounds of substitution, something which is rarer than hens teeth!
The questions this week are:
Is it fair to dismiss an employee who has been instructed to use accrued holiday for going on holiday without the company’s consent?
Can an employee have a holiday request rejected if they have not even been allocated work for the days they have requested?
Mrs Blake, the Claimant, had been employed by Leeds Teaching Hospital, the Respondent, as a Porter since for 1987. In 2012 she was given a final written warning for sending confidential information to her personal email and transferred to work as a Security Officer. The Claimant had previously committed protected acts by making allegations of sex discrimination against herself and supporting a colleague in a disability discrimination case.
Prior to moving roles the Claimant had a large amount of untaken accrued holiday, she was advised to take this as soon as possible before she was officially to be put on the security rota. She wrote to her manager requesting dates but was declined for not filling out a holiday form. She made further requests and applied for holiday using the appropriate form and these were all approved.
The Claimant still had untaken accrued holiday and was looking to book a cruise with her family. She called her manager to ask if the dates were ok and upon confirmation from her manager booked and paid for the cruise. She then filled out a holiday form but this was rejected.
The Claimant asked why the holiday request was rejected and requested a formal meeting with the Respondent. The Respondent rejected this request and instead sent a letter explaining that two other members of the security team were away on the requested dates and also stated that any leave taken without consent would be viewed as an unauthorised absence.
The Claimant went on the cruise anyway and upon her return was subject to disciplinary action and dismissed for a serious conduct offense and failing to follow a reasonable management instruction whilst on a final written warning. The Claimant was paid notice pay but nonetheless brought claims for unfair dismissal and victimisation discrimination to tribunal.
The tribunal allowed both claims citing the fact she had been instructed to take all her holiday and had prior verbal consent as reasoning for justifying the absence and that the Claimant had been subjected to unfair treatment on account of her previous protected acts. It also noted the fact the Claimant was not on the work rota anyway as further justification for unfair dismissal.
The Respondent appealed the decision on the grounds that the ET had substituted its own view for that of a reasonable employer. It highlighted the lack of scrutiny of the Claimant’s evidence which it believed lacked credibility, particularly in relation to the victimisation claim.
The EAT decided that the ET had placed too much importance on the response used by the employer without properly examining the evidence. It also failed to recognise that a Respondent has a number of reasonable responses and that dismissal could have fallen into that category. The appeal was allowed and remitted to a fresh ET.
No, it is poor practise to informally allow/encourage an employee to take holiday then reject their holiday requests. If this employee has not technically started work or is not scheduled to work in the holiday period then it does give the employee room to manoeuvre and leaves the employer vulnerable, especially since taking holiday is a health and safety issue!
A more important legal point from this case is that the ET can make mistakes, even in a scenario like this where there has been questionable decision making by the employer, the ET fell foul to substituting its own view for that of the Respondent’s instead of that of a reasonable employer. Lesson, sometimes it can be worth fighting an ET decision.
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