Unfair dismissal for SOSR?

21 November 2018

Should an employer always have a meeting before dismissing an employee for some other substantial reason (SOSR)?

Not always, said the Employment Appeal Tribunal in Hawkes v Ausin Group. The employer was a small business in its first year of trading. Mr Hawkes was one of only a handful of employees and its most senior. He was also a Royal Marine Reservist.

The employee signed up for a voluntary 7-week overseas training course. It was due to take place during a very busy period for the business. He initially presented the training as compulsory. It was only when his manager made enquiries of his training officer that she found out the course was voluntary. In the meantime, the employee had accepted a place on the course. Under military law he was now required to attend.

The employee made it clear he was attending the course. The business could not sustain his absence for 7 weeks. They called him to a meeting and dismissed him with immediate effect, paying him in lieu of notice. He brought an unfair dismissal claim, which he lost. He said there should have been an earlier meeting to discuss dismissal as he may have changed his mind. The employment tribunal said that an earlier meeting would not have changed anything because he had already decided to go on the course. The employee appealed to the Employment Appeal Tribunal.

The EAT said it was open to the tribunal to look at the facts and decide that an earlier meeting would not have made any difference. SOSR dismissals are different from misconduct where it is usually necessary to hold a meeting to consider the employee's explanation. The process followed was not unfair.

However, employers should guard against relying on this case as the facts are quite unusual. It is always best to hold a meeting to give an employee the opportunity to present their case before dismissal.

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