Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

In the case of Hawkes v Ausin Group (UK) Ltd UKEAT/0070/18/BA, the Employment Appeal Tribunal (“EAT”) upheld the decision of the Employment Tribunal (“ET”) when they agreed that a meeting prior to dismissal of the employee would have been futile as it would have made no difference to the decision to dismiss.  They also upheld the ET’s finding of fact that the employee was committed to undertaking a seven-week exercise as a Reservist in the Marines and it was because of this commitment that the meeting, even if held, would have made no difference to the decision to dismiss.

The facts in Hawkes v Ausin Group (UK) Ltd

The Claimant was a Reservist in the Marines and commenced employment with the Respondent, a small employer, on 7 September 2015 as Business Development Manager.  In June 2016 the Claimant put his name down to be considered for a 7-week training exercise with the Marines.  He was not obliged to undertake the exercise, but volunteered to do it.  However, if he was accepted onto the course, he would be required to sign an additional duties commitment form after which he would be obliged to do it.  The Claimant was accepted onto the course and signed the additional duties form in July 2016.  He did not tell the Respondent that he had volunteered for the exercise and that it was not mandatory, but this became clear to the Respondent when they completed their own enquiries.

When the Respondent expressed their concern about the Claimant going on the exercise and the way he had presented it to them, the Claimant denied that he had inferred previously that the course was mandatory, but said it was part of the training he needed to undertake during the year.

On 5 August the Respondent invited the Claimant to a meeting where he was told that he was being made redundant.  He was also told that they had not expected his commitment as a Reservist to be a significant as it was and that they could not accommodate his request to be away from the business for seven weeks.

The Claimant brought a claim in the ET for unfair dismissal.

The decision of the Employment Tribunal

The ET concluded that the Claimant was dismissed because he was going to be absent from work for a period of seven weeks and the Respondent could not sustain such an absence.  Accordingly, they found that the Claimant was dismissed for some other substantial reason (“SOSR”).  They also found that the reason for his dismissal was connected to the fact that he was a Reservist.  Pursuant to section 108(5) of the Employment Rights Act (“ERA”), the ET found they did therefore have jurisdiction to hear his complaint, notwithstanding the fact that he did not have two years’ service.

The ET then went on to consider whether or not the dismissal was fair on unfair.  They concluded that there was a potentially fair reason for dismissal and that the Respondent’s decision to dismiss was reasonable in all the circumstances, despite the fact that the Respondent had failed to hold a meeting with the Claimant before the decision was made.

The decision of the Employment Appeal Tribunal

The Claimant appealed the ET’s decision on two grounds.  His first ground was that the ET had erred by taking matters only relevant to whether or not there should be a Polkey reduction into account when considering substantive unfairness.  In particular, by considering whether the failure to hold a meeting before the decision to dismiss was made.  The Claimant also challenged the ET’s findings of fact that there was nothing in the evidence to indicate that the Claimant would have changed his mind about going on the exercise if there had been a meeting and that the Respondent’s position had been made clear to him prior to dismissal.

The Law

Section 98 of the Employment Rights Act states that it is for an employer to show that the reason (or principal reason, if more than one) for the dismissal: (i) relates to the capability or qualifications of the employee (ii) relates to conduct (iii) is that the employee is redundant (iv) that the employee could not continue to be employed without contravening the law or (vi) where it is none of the above, it is for SOSR of a kind such as to justify dismissal.  If an employer is able to show that the dismissal is for one of the reasons stated above, whether or not the dismissal is fair or unfair will depend on whether in the circumstances (including their size and administrative resources) the employer acted reasonably or unreasonably in treating it as a sufficient reason to dismiss the employee.

A Polkey reduction

Following the case of Polkey v A E Dayton Services Ltd [1988] 1 AC 344, if a dismissal is procedurally unfair, the ET will consider whether the Claimant would have been dismissed anyway if a proper procedure had been followed and has the power to adjust compensation accordingly.

With regards to the first ground of appeal, the EAT held that the ET had simply focussed on whether the failure to hold a meeting before the decision to dismiss was made rendered the dismissal unfair.  As the Claimant had made it clear that he was going on the exercise and had committed himself to it, they were entitled to conclude that the failure to hold a meeting in advance was not unfair because, based on the facts of the case, it would not have changed anything.

With regards to the second ground of appeal, the EAT disagreed that there was evidence that was presented to the ET that the Claimant may have been prepared not to go on the exercise if he had been given an ultimatum that going on it could result in his dismissal.  The EAT found that there was substantial evidence to support the ET’s finding of fact that the Claimant was committed to going on the exercise regardless of what the Respondent thought about it and as such that ground of appeal failed as well and his appeal was dismissed.

Our solicitors’ views on the case of Hawkes v Ausin Group (UK) Ltd Ltd

Sacha Barrett, a Senior Associates in the employment department at Redmans, made the following comment on the case: “This case demonstrates that, in very limited circumstances, it is possible to fairly dismiss an employee without holding a meeting with the employee prior to making that decision.  However, this case is very fact specific and employers should generally err on the side of caution and hold a meeting with an employee before dismissing wherever possible.

The decision of the Employment Appeal Tribunal in Hawkes v Ausin Group (UK) Ltd Ltd/0070/18/BA can be found here.

About

Redmans Employment Team deal with employment matters for both employers and employees, including drafting employment contracts and policies, advising employers and employees on compromise agreements, handling day-to-day HR issues, advising on restructures, and handling Employment Tribunal cases for both employers and employees Call 020 3397 3603 to speak to one of the members of our employment team or email us on enquiries@redmans.co.uk. Redmans have offices in Richmond, Chiswick, Hammersmith, Fulham, Kingston, Wimbledon, Ealing, Kings Cross and Marylebone (meetings strictly by appointment only).

Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

Share →

Our awards

Request a callback

    Your first name (required)

    Your last name (required)

    Your email (required)

    Your telephone number (required)

    Brief details of your enquiry

    Testimonials

    4.81 Average

    314 Reviews

    Anonymous

    I'd highly recommend Redmans Solicitors. Mel was very helpful and assisted me throughout my case.

    Posted 1 day ago

    Anonymous

    Sacha was very thorough and very helpful, with great advice on when to act and when to wait on my case.

    Posted 4 days ago

    Anonymous

    I have been very pleased with the support I got from Redmans Solicitors on my case with my employer. Caroline has always helped me to put things in perspective and showed me different scenarios ultimately to help me taking the right decision. She was very professional and always available when I needed, and at the same time also emphatic which I found also really important to establish a strong relationship. Will definitely recommend!

    Posted 6 days ago

    Anonymous

    Prompt and efficient response to my enquiries. Excellent negotiating skills with my employer which considerably improved the terms of my settlement agreement.

    Posted 6 days ago

    Anonymous

    Very quick and professional service , Rana was very helpful

    Posted 1 week ago

    James G

    Very professional, knowledgeable and kept me informed at every stage of my case. I would highly recommend Redmans.

    Posted 1 week ago

    Pravina P

    Chris was really good and help solve my issues with current company. I would recommend him to anyone.

    Posted 2 weeks ago

    Paul L

    Sacha was extremely helpful in my matter. I would not hesitate you use Sacha or Redmonds again. Everyone was very helpful.

    Posted 2 weeks ago

    Monique N

    I had Mel Chin helping me with a settlement and she was very professional and reliable throughout my case. Mel provided me with a good understanding of what was happening and gave suggestions on routes I could take. My case was resolved and closed promptly although the opposing side were very difficult to deal with. A very big thank you to Mel and Chris.

    Posted 2 weeks ago

    Jackie C

    My first ever experience needing the services of a solicitor; cannot speak highly enough of Mel and Chris’s personable, reassuring and straight to the point advice in dealing with my settlement agreement. They put me at ease during an extremely stressful time. I am equally as happy with the outcome, as l am their professional services.

    Posted 3 weeks ago

    ""

    Really happy with the service. All very efficient. Mel rattled through things very fast, however was great whenever I needed to stop and ask a question! Would definitely return to Redmans if I ever needed Legal advice.

    Posted 3 weeks ago

    Peter F

    Very helpful and clear advice, would highly recommend.

    Posted 4 weeks ago

    William A

    Second time I have had to use Redmans. They did not disappoint. They are fast , efficient and friendly. I have already recommended them to friends and colleagues. I hope I dont have to use them again but if I have to , they are the solicitors for me.

    Posted 4 weeks ago

    Fleeta C

    Great service with tantastic communications. The solicitor responsible is extremely knowledgeable and was responsible for bringing a timely and desired solution.

    Posted 4 weeks ago

    Veronica M

    Extremely helpful, starting from a request for advice at very short notice, to dedicating time for me to understand and review all documents thoroughly.

    Posted 4 weeks ago

    Sophie R

    Very efficient and professional service. Chris was very empathetic, knowledgeable and personable. Highly recommended.

    Posted 1 month ago

    Melanie M

    Very happy with the detailed advice provided from Redmans. They also helped me to secure a higher settlement than originally offered by my employer and were extremely diligent. I first spoke with Chris at relatively short notice and then Sacha dealt with my case. Would definitely recommend and use again in the future if needed.

    Posted 1 month ago

    Anonymous

    Redmans helped me with a work related issue, which was resolved quickly and professionally. I would definitely recommend this company.

    Posted 1 month ago

    James F

    Great people, really friendly and professional helped with everything that I needed.

    Posted 1 month ago

    Anusha S

    My case was handled by Sacha who was very thorough and helped me to achieve a good outcome with my employer. Sacha was very personal, professional and helped me during quite a stressful time, so I am hugely grateful to her and to Redmans. This was my first time engaging with a law firm so I wasn't sure what to expect but I can definitely say that it was a good experience overall and I ended up better off due to having the help of an experienced and proactive solicitor on my side.

    Posted 1 month ago

    Diane P

    So grateful that I contacted Redmans to deal with my Redundancy Agreement. Everything from the initial call to the completion of the matter was professional, efficient and effective. I was listened to, had everything explained simply and kept informed of every step. I received super advice and the costs were very competitive. I would highly recommend them to anyone seeking similar help. First class service - thank you

    Posted 1 month ago