Although employers are usually expected to follow a fair process (including holding a meeting with the employee) before dismissing them, the Employment Appeal Tribunal (EAT) held in Hawkes v Ausin Group (UK) Ltd that it is not necessarily unfair not to hold a meeting with an employee before dismissing them for some other substantial reason.
Mr Hawkes, a reservist with the Marines, applied for a job with Ausin Group in September 2015. He explained that, as a reservist, he had to undertake 28 days’ training per year and that he would need an additional week’s unpaid holiday per year in order to fulfil his training requirements. Although a relatively small organisation, the company decided it could accommodate his needs and appointed him to the role of Business Development Manager.
In June 2016 he volunteered to undertake an exercise that would last for seven weeks from 26 August until 16 October 2016, but did not inform his manager that it was not mandatory. However, after making some enquiries she discovered that, as an employer, they had no obligation to agree to it. In early August his manager invited him to a meeting where she told him that his role was being made redundant, with immediate effect.
He claimed unfair dismissal. Although he did not have two years’ continuous service (required under section 108(1) of the Employment Rights Act, ERA), Mr Hawkes brought his claim under 108(5) of the ERA which states that subsection (1) does not apply if the reason (or, if more than one, the principal reason) for the dismissal is, or is connected with, the employee's membership of a reserve force.
Having concluded that the dismissal was fair for “some other substantial reason” (SOSR), the tribunal considered whether the company acted reasonably in treating it as a sufficient reason for dismissing him.
It held that the company had acted reasonably in all the circumstances, given that it was a new company that was not doing as well as expected. As Mr Hawkes’ absence would have a substantial impact on the business, it could not continue to employ him on a salary of £70,000 per year.
In terms of the process that the company followed, the tribunal held that although the decision to dismiss him had been made before the meeting with him, he had already decided to attend the exercise. Holding a meeting before deciding to dismiss him would therefore not have made any difference to the outcome. Nor would it have made any difference to give him notice of the meeting.
In considering whether the company acted reasonably, the tribunal also took into consideration the way in which Mr Hawkes had approached the issue. For instance, not discussing it with his employer before putting his name down for the exercise and making out that the exercise was mandatory. It concluded that the company had acted reasonably in all the circumstances and dismissed his claim.
The EAT agreed with the tribunal, holding that this was not a misconduct case where it would usually be considered necessary to hold a meeting in order to consider the employee’s explanations for the conduct in question. Instead, this was a case involving a dismissal for some other substantial reason, the reason being that the company could not allow Mr Hawkes to take seven weeks’ leave.
Given those circumstances, it was open to the tribunal to make a finding of fact that an earlier meeting would not have changed the decision to dismiss, given that Mr Hawkes had already made a firm commitment to attend the exercise.
This is a very fact specific case and although it shows that in some very limited circumstances, it is not always necessary to hold a meeting with the employee in order to establish that the dismissal was fair, as a rule, it would be advisable to do so failing which, an employer risks the dismissal being challenged on the basis that a fair dismissal procedure was not followed.