Is this unfair dismissal? I think not

LeaveDenied · 2023-03-15T11:03:05+00:00

Not me, mum. She works in a warehouse packing orders. Been there about 5 years. She wants to take 10 weeks leave to travel – she’s going alone and no medical treatment involved she just says she has to go. Put in the request and they came back and said she could have 2 weeks but would need to be in for the remaining 4 weeks. They have said she can take 2 further weeks at another time between now and April and then after April book another 2 weeks and another 2 week block etc until she’s done the full 10 weeks. She said she was going anyway whether they paid her or not. They’ve said if she does go and doesn’t come back after 2 weeks then she won’t have a job to come back to. She thinks it’s unfair dismissal but I think they’re right. I work for the same company in the offices and took 6 weeks off last year but it was dependence leave as my DC had an operation and needed care. Mum says this is the same situation and she should be treated the same, my job was waiting for me when I returned so she thinks hers should be to. So is it unfair dismissal? Or can they say there will be no job when she comes back?

ComtesseDeSpair · 15/03/2023 11:09

No, it isn’t unfair dismissal. She‘s essentially asking for additional (unpaid?) annual leave above her legal entitlement, which is at the discretion of her employer - and they have refused this, as they have the legal right to. If she has been authorised to take two weeks leave and takes more without authorisation, her dismissal is due to misconduct.

Danikm151 · 15/03/2023 11:10

It’s definitely not.

technically a workplace can set your annual leave.

leave for dependants is unpaid and right.
taking a chunk of time because you want to go on your jollies isn’t.

She could apply for a sabbatical but they tend to be for professional growth

Original poster

LeaveDenied · 15/03/2023 11:14

I was paid for my dependence leave, but that was completely up to the company and would have taken it unpaid or as SSP if needed

I did think the company where in the right.

Thank you

OP posts:

ACynicalDad · 15/03/2023 11:14

She has no right to take it. She either needs to resign, give up or negotiate. It may be that by resigning, they realise that 10 weeks unpaid leave, or 6 weeks unpaid plus her 4 weeks due isn't too bad a sacrifice to keep someone who knows the role and has been dependable for 5 years. Recruiting and onboarding a replacement will be far more effort and they may be awful. Is there a quiet time of the year, maybe she could negotiate to go then and they might be grateful not to be paying someone then. Dependents leave is completely different and is a legal right for parents.

Cheeseandhoney · 15/03/2023 11:16

Of course it’s not unfair dismissal. You can’t just fuck off for ten weeks and expect the business to cover you. Christ can you imagine if everyone did it. It would be chaos.

Original poster

LeaveDenied · 15/03/2023 11:16

ACynicalDad · 15/03/2023 11:14

She has no right to take it. She either needs to resign, give up or negotiate. It may be that by resigning, they realise that 10 weeks unpaid leave, or 6 weeks unpaid plus her 4 weeks due isn't too bad a sacrifice to keep someone who knows the role and has been dependable for 5 years. Recruiting and onboarding a replacement will be far more effort and they may be awful. Is there a quiet time of the year, maybe she could negotiate to go then and they might be grateful not to be paying someone then. Dependents leave is completely different and is a legal right for parents.

@ACynicalDad She wants to take it at that time, says it's the only time she can go and wants to go so she won't be negotiating.

It's not a job that has a lot of training, and they have a high turn over of staff anyway due to the type of work it is (warehouse packing orders) so I don't think they'd be bothered about losing her.

OP posts:

Quveas · 15/03/2023 11:18

They are right. They have the absolute authority to dictate when holiday is taken. If they wanted to they could say that she must take 1 day a week for 28 weeks (or however many days she gets). The law supports the employer in this. She needs to resign and give proper notice or she will have a reference that says she was dismissed.

ACynicalDad · 15/03/2023 11:21

@LeaveDenied in that case resign and reapply when she is back- she may not get it and if she did there are downsides, she would not be considered to have continuous employment if she were ever made redundant, she may have pension enrolment delayed three months, she may need to do probation and mandatory training again, but it's certainly an option.

Quveas · 15/03/2023 11:22

ACynicalDad · 15/03/2023 11:14

She has no right to take it. She either needs to resign, give up or negotiate. It may be that by resigning, they realise that 10 weeks unpaid leave, or 6 weeks unpaid plus her 4 weeks due isn't too bad a sacrifice to keep someone who knows the role and has been dependable for 5 years. Recruiting and onboarding a replacement will be far more effort and they may be awful. Is there a quiet time of the year, maybe she could negotiate to go then and they might be grateful not to be paying someone then. Dependents leave is completely different and is a legal right for parents.

You are assuming that she's been dependable or that they won't be able to replace her easily. But I have to be honest - as a manager even if it would be hard to replace her and she had been dependable, I would still dismiss her. If she thinks that she can act like she owns the workplace this time, she will do it again. And everyone will see her get away with it. You can't manage in circumstances where your employees think they can fuck off and do what they want, when they want, regardless of what they are told.

Bumply · 15/03/2023 11:32

My brother used to takes months off at a time, but he effectively resigned, had his extended holiday and then job hunted on return.
Twice he got taken back by his original company because he had highly desirable IT skills.
He in no way expected this to be guaranteed though.

fluffiphlox · 15/03/2023 11:35

She’s taking the mickey. I would dismiss her and not take her back. Who’s to say she wouldn’t do the same next year.

Karwomannghia · 15/03/2023 11:48

It’s not unfair dismissal but what they’ve offered makes no sense as she wants the block together. I’d take my chances if I were her and resign.

Mariposa26 · 15/03/2023 11:55

If she doesn’t resign and goes anyway, they would still need to follow a proper process in order to dismiss her fairly, but they would just consider her awol and do it in her absence which is fairly straightforward.

MrsMoastyToasty · 15/03/2023 12:34

The only places that I've worked at that have allowed extended leave have asked that you take the final 2 weeks of one annual leave year and the first 2 weeks of the new annual leave year.

prh47bridge · 15/03/2023 13:03

As others have said, this is not the same as dependents leave, which is a legal right.

In your mother's case, since she has been told she cannot take this time off, your employer can treat this as insubordination as well as being absent without leave. That is likely to be enough to justify summary dismissal for gross misconduct.

Your employer must still follow the correct process to dismiss her but, provided they do, this will not be an unfair dismissal. Even if they get the process wrong, she is unlikely to get much, if anything, via the Employment Tribunal due to her own behaviour.

Viviennemary · 15/03/2023 13:05

It is not unfair dismissal. She is not abiding by the terms and confitions of her contract which doesn't include 10 weeks leave.

Megifer · 15/03/2023 13:18

I believe it would be unfair/wrongful dismissal technically if they don't follow due process but as she wouldn't get much - maybe an amount equal to how long the process should have taken which would be, what, 2 days (usual notice for disciplinary hearing)? Not worth it.

DelphiniumBlue · 15/03/2023 13:18

It's not unfair dismissal, but I don't get people saying that they'd dismiss her and not take her back. If she's a good employee, why ever not, assuming there was a vacancy.
A decent employer would positively encourage personal growth. It's not "acting like she owns the place", it's just needing to do something for herself.
I can understand business need requiring them to fill the vacancy, but she is can give plenty of notice and they seem sure that they can fill her position quickly, so why are some of the "managers" on here showing such animosity for towards someone who is getting older and wants to do something different with her life for a few months while they can?

Whichwhatnow · 15/03/2023 13:25

Not unfair dismissal (much as I'd love to have the right to take unpaid leave whenever and for as long as I wanted - I'd be on the next plane to somewhere in South America if so!).

Some employers (including in my current role) allow employees to apply for unpaid sabbaticals after a certain number of years of service (at mine it's up to three months after eight years I think) but even then it's discretionary. And would obviously be mentioned in her contract!

goinggoinggoneagain · 15/03/2023 14:04

Nah, it's not unfair dismissal. Unpaid leave is entirely at the employer's discretion and isn't a 'right'.

She should approach the employer again and say this is her life dream and if she resigns, would they be willing to see her or allow her to re-apply on her return? No guarantees but if she's dependable they might be willing to see her when she gets back.

N27 · 15/03/2023 14:11

Definitely not unfair dismissal. Your mum presumably has a contract of employment that she will work x hours a week, so by taking this leave despite being told no she would be:

in breach of contract

awol

refusing to follow a reasonable request

all grounds for a fair dismissal.

whether or not I would reemploy her on her return would entirely depend on her attitude to the situation, and based on what you’ve said so far i wouldn’t.

Yesthatismychildsigh · 15/03/2023 14:15

She sounds a bit dim sadly, will she have any problem finding another job?

Oblomov23 · 15/03/2023 14:54

Totally normal, not unfair dismissal. Many places have a 2 week maximum holiday at any one time.

MrsBennetsPoorNerves · 15/03/2023 14:58

Of course not. If she is absent without leave for several weeks, then that would presumably be gross misconduct. She is being ridiculous!