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Erroneous absence warning makes dismissal unfair

Posted on 20th April 2011
Case law

A warning issued to an employee for an absence which did not qualify under the employer's procedures for a warning made the dismissal unfair.

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Mr Sakharkar v Northern Foods Grocery Group Ltd UKEAT/0442/10


Mr Sakharkar (S) worked for Northern Foods (NF). S had periods of absence which were addressed under NF's absence policy. The absence policy had four stages; the fourth was dismissal. The manager who took the decision to dismiss S believed the policy had been followed. This case revolved around a warning issued at the third stage. By the time of the employment tribunal hearing both S and NF agreed that the third stage warning had been wrongly issued because S's absences did not trigger the third stage under NF's policy. Neither realised this at the time the warning was issued nor when S was dismissed. It was only realised after S had lodged his claim at the employment tribunal.

The decision

Both the employment tribunal and the EAT agreed that NF had a genuine (if mistaken) belief in the reason for the dismissal, being breach of NF's absence policy. However the EAT held that the dismissal was unfair because of the procedure followed. NF's personnel department specifically had responsibility for 'auditing' absence and ensuring 'the fair and consistent application of' the absence policy. It had not done so. The warning was therefore 'manifestly inappropriate' and made the subsequent dismissal unfair.

In practice

There are a number of practical points to take from this case.

The EAT commented that 'the decision maker does not always stand alone'. Usually, what was in the mind of the decision maker will be determinative. However, for larger employers, if a dismissal is to be fair, they have to use their administrative resources reasonably. This is particularly so where the dismissal is under an absence policy and any HR department will be expected to provide support to the manager making the dismissal decision to ensure that it was reasonable to dismiss.

This case is similar to a case we reported on; Defective final written warning can make subsequent dismissal unfair. The cases indicate an increased willingness to interrogate the procedures followed at each stage of a process resulting in dismissal. If you have a detailed and prescriptive absence policy, ensure that you comply with it and that any absences and warnings relied upon fall within the terms of it. This should be done both at the time of any warning and subsequent stages.

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