Automatically unfair dismissal

Case 7: The facts

Soon after starting work as a delivery driver, Thomas Palen had to take a day off to be with his wife, who had been taken to hospital. He returned to work the next day and was dismissed; his employer said it was such a small company that it could not afford such incidents. He then received a letter saying that he had been dismissed for gross misconduct over damage to company property.

The ruling

The Employment Appeal Tribunal (EAT) upheld the tribunal’s decision that Palen had been dismissed for a reason related to his right to take time off under section 57A of the Employment Rights Act 1996 (which is an automatically unfair reason for dismissal so is not subject to the one-year qualifying service for bringing most unfair dismissal claims). Although it had not expressed it in this way, the tribunal had found his amount of time off to be necessary and reasonable.

Palen was awarded £3,835 in compensation for unfair dismissal, which included a 30% uplift because the employer had not complied with the statutory disciplinary and dismissal procedures. But the EAT said the tribunal had been wrong to award compensation for the employer’s failure to give Palen a written statement of his terms and conditions of employment, as he had not been employed for the necessary two months to qualify for this right.

RKS Services v Palen EAT/0300/06