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Unfair Dismissal

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Is it necessary to hold a meeting with an employee before dismissing them for some other substantial reason?

Not always, held the EAT, in Hawkes v Ausin Group (UK) Ltd.

The Claimant was a reservist with the Marines. He signed up (voluntarily) for a 7 week overseas call up. His contract of employment permitted a week's unpaid holiday per year for his reserve duties. Mr Hawkes informed his employer that he would need 7 weeks' leave in order to complete the call up. After some enquiries, Ausin Group found out that the call up was not mandatory and did not want him to go ahead with it.

Once the Respondent realised that the Claimant had chosen to go, despite the call up not being mandatory, it invited him to a meeting where he was summarily dismissed.

The EAT held that:

"This is not...a misconduct case where it would usually be considered necessary to hold a meeting in order to consider the employee's explanations...This was a dismissal for some other substantial reason...In that context, it was open to the tribunal to make a finding of fact that an earlier meeting would not have changed the position because of the Claimant's firm commitment to the exercise."

Accordingly the process followed was not necessarily unfair. This case is fairly fact-specific, and employers should not assume a tribunal will follow it in the future.

This is an unusual case, where the Claimant might perhaps have been better exercising his rights under the Reserve Forces (Safeguard of Employment) Act 1985. The rights under this act are particularly potent, due to the criminal penalties for non-compliance.

Thanks to Matthew Jackson of 10 KBW for preparing this case summary.

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