The claimant, Mr Hawkes, was employed by the respondent company as a business development manager. He was also a Royal Marines reservist which required him to perform 28 days’ training each year. Upon acceptance of his offer of employment he had negotiated an additional week’s unpaid leave as part of his contract, subject to the prior approval of his manager, to enable him to discharge his duties as a reservist. He also notified his employer that there was potential for him to be called for active service.

In June 2016, the claimant enrolled in a seven week voluntary training exercise in California. He asked his manager for five days leave to attend an initial shooting exercise and a further seven weeks between August and October. The claimant omitted to mention the course was voluntary, and as a result his manager was under the impression it was a request for active service, something the company was obliged to consent to.

To her dismay the claimant’s manager subsequently discovered the training course was, in fact, voluntary. The claimant was adamant that he was going to undertake the seven weeks’ training regardless of any concerns that his employer had. He was then informed that his role was being made redundant and his contract was terminated. The company asserted it could no longer accommodate his absence, stating it did not realise the significance of his commitment to the Marines. The manager insisted she would not have approved the training had she known it was voluntary and that “it was not sustainable for the business to have the most experienced person in sales out of the business for that period of time”.

The claimant lodged tribunal proceedings alleging unfair dismissal. The Employment Judge concluded that the reason for dismissal was owing to his prolonged absence at a crucial time for the business and that the respondent could not sustain such an absence. The tribunal held this was a substantial reason which fell within the band of reasonable responses. The fact the respondent failed to coordinate a meeting prior to making its decision was immaterial given the claimant’s commitment to attending the training. The tribunal concluded a further meeting would not have changed either decision. Dismissing the appeal, the EAT upheld the decision of the tribunal, stating it had applied the correct test under section 98(4) Employment Rights Act 1996. Note that the decision may well have been different in NI, where employers are required to follow the statutory dismissal procedures to avoid a finding of unfair dismissal.
https://assets.publishing.service.gov.uk/media/5bbdf94ced915d734dcec8f6/Mr_A_Hawkes_v_Ausin_Group__UK__Ltd_UKEAT_0070_18_BA.pdf