Unfair Dismissal Claim Upheld Despite Genuine Mistake of the Employer
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14.3.2011
The EAT had to consider whether, taking into account the size and administrative resources of the employer, the employer had acted reasonably in treating the employee's failure to comply with its absence policy as a sufficient reason to dismiss the employee. The EAT held that the fact that the employer had made a genuine mistake in the operation of its policy was relevant to the question of whether it had acted reasonably in dismissing the employee, but it was not conclusive. The EAT found that the employer had erred in inviting the employee to a final review meeting to deal with his absences from work. The employer’s absence policy stated that the employer could only invite the employee to a final review if the employee had two further periods of absence within 12 months of his second review with the employer. In this case, the second of the employee’s absences fell outside the 12 month period. The employee’s line manager genuinely did not realise that the absence fell outside this period and invited the employee to a final review in order to discuss his absences from work. After the review, the employer put the employee on a final warning with regard to his absences. The employee failed to adhere to the final warning and the employer dismissed the employee as a result of his additional absences from work. The EAT held the view that the employer had sufficient resources (including a personnel department) to ensure that their policies were carried out in a consistent and fair manner. The EAT confirmed that "fairness requires that if an employee is to be assessed against a prescriptive policy care is taken to apply the policy correctly in accordance with its terms and consistently as between different employees". The EAT found that no final warning should have been given to the employee (following the final review) and held that the dismissal of the employee for failure to comply with this warning rendered the dismissal unfair.
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