EAT upholds decision that it was fair to dismiss a member of reserve forces

Caroline Cobain
Legal Director
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The Employment Appeal Tribunal (EAT) has found the dismissal of a Royal Marine reservist for volunteering to participate in a seven week training exercise, without prior approval from his employer, to be fair.

The employee’s contract of employment granted him one week’s unpaid holiday to fulfil his reserve forces training requirements. He volunteered for, and committed to, a training exercise lasting seven weeks. He neither informed his employer that he had volunteered for this training exercise, nor did he complete the required application form requesting this leave from work.

The employer dismissed the reservist. The main reason for his dismissal was that it was unsustainable for the business to have a senior member of staff away for a continuous seven week period.

Subsequently, the reservist raised a claim that he was unfairly dismissed as a result of his membership of the reserve forces.

The Employment Tribunal (ET) held that the decision to dismiss the reservist was fair for ‘some other substantial reason’ under unfair dismissal law. The ET believed the employer acted reasonably in the circumstances relating to the Claimant’s dismissal due to the lack of prior consent and the detrimental impact the absence would have on the business.

The appeal to the EAT was dismissed. Interestingly, the EAT decided that the employer did not need to follow the sort of ‘fair’ process, in terms of notifying the employee of the risk of dismissal, and holding a meeting to discuss, as would be required in a disciplinary situation.

The EAT was also satisfied that the reason for dismissal was not the reservist’s membership of the armed forces, but rather the length of the leave he sought to take, its effect on his employer’s business and the fact that he had not been completely forthcoming with his employer about whether the training was mandatory.

This is a useful example of a case where an employer did not simply take the information being provided by an employee at face value, and made appropriate enquiries before deciding that their business would be too adversely affected by granting the leave the employee proposed to take. However, it is worth noting that an employee with more than two years’ service, who had ‘ordinary’ unfair dismissal rights, might have been in a stronger position to challenge the employer’s actions.

Dismissing a reservist for activities associated with their membership of the reserve forces remains risky in general, and detailed advice should always be taken before doing so.

If you have any questions regarding this update, or you require advice or assistance on any other employment law matters, please do not hesitate to contact a member of our team on 0141 331 5150.

Topics: Employment Appeal Tribunal