Where can precautions against COVID-19 constitute gross misconduct?
This case demonstrated how tribunals deal with claims of unfair dismissal where someone has been dismissed for attempting to prevent the spread of COVID-19.Read more
In the recent Employment Tribunal case of Mr Ceesay v City Facilities Management Ltd: 1804762/2019 an Employment Tribunal sitting at Leeds decided that the Claimant had been unfairly dismissed.
The background to the case is that the Claimant had asked to urgently use annual leave because, “his mother was seriously unwell and required significant cardiac surgery.” The Claimant’s mother resided in Gambia and the Claimant thus needed to travel there in order to see her. The Respondent Company rejected the request on the basis that the Claimant had not given sufficient notice to take the leave and was not eligible for extended leave under the Company’s annual leave policy. The Claimant was only entitled to the three days that he had accrued as annual leave but this was insufficient for the travel to Gambia. The Claimant made it clear that he intended to take the extended leave anyway as he considered it a family emergency.
After the Claimant had returned from Gambia the disciplinary procedure was engaged to consider whether the unauthorised absence amounted to misconduct. The disciplinary officer decided that the Claimant had not notified the Company of his extended absence and that there were no mitigating circumstances. He thus decided that the appropriate sanction would be to terminate the Claimant’s employment.
The Employment Tribunal was mainly critical of the decision to terminate the Claimant’s employment because the Company had not given any “consideration to the potential for emergency leave and/or compassionate leave.” The Company had policies in place covering these but had not referred to them during the disciplinary process and had not considered them when the Claimant took the leave.
The Tribunal also noted that the decision that there were no mitigating circumstances was inconsistent with the Claimant having informed the Company before the absence of his mother’s illness and the disciplinary officer’s evidence that he had reached the decision to dismiss with reluctance.
It can cause considerable operational problems for employers where an employee takes leave at short notice for an extended period. However, it is conventional for employers to grant periods of leave for family emergencies or on compassionate grounds. It is thus advisable for employers to have clear guidelines as to when such leave may be taken and then to apply them proactively where such circumstances arise. A Tribunal would be unlikely to find that a dismissal is unfair where reasonable consideration is given to such policies.
A link to this case can be found here.
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An Employment Tribunal published its judgement in the case of X v Y . The case offers an insight into how the COVID-19 pandemic interacts with employment law.Read more
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