Clarke v Credit Resource Solutions ET/1809275/10

In this recent case an employment tribunal had to consider whether an employee Mr Clarke had been dismissed for taking time off to arrange emergency childcare or whether as Credit Resource Solutions argued, his dismissal had been for gross misconduct for refusing to carry out his duties and reasonable instructions to sign a “late” form.   

Mr Clarke was employed by CRS from November 2009 until August 2010.  He should have started work at 9.30am but arrived later once he had found another relative to look after his children.  When he arrived he refused to sign a “late” form which provided for an hour to be deducted from his salary.  Despite this his subsequent payslip showed that he had been deducted an hour’s pay.  He refused to sign the late form because he was not assured that he would not be penalised for taking time off to organise his childcare arrangements.  He was told at a disciplinary meeting that unless he signed the form, provided a written apology and accepted the final warning, he would be dismissed.   

He refused and was dismissed.  His appeal was unsuccessful and he brought proceedings against CRS for unfair dismissal for exercising his right to take time off to make childcare arrangements.  His claim was successful.  The tribunal found that being half an hour late was reasonable on the day he had taken off time to arrange for emergency childcare.  The principal reason for his dismissal had been that he had taken time off work.  The detriment he suffered was in having an hour’s pay deducted and also being put under pressure to sign a late form.  His dismissal was for a reason connected with the fact that he had taken time off.  The fact that CRS had been prepared to issue him with a final warning demonstrated that the incident was not one of gross misconduct.  If there was a management discretion over whether a deduction should be made following the completion of the “late” form this was not made clear to staff, nor referred to in the form, nor had Mr Clarke been aware of it.   

The staff handbook included the time off for dependants policy in which the discretion was referred to but none of CRS’ witnesses had been aware of the policy or whether it was relevant to Mr Clark’s circumstances.  The tribunal held that the “late” form was insufficiently clear about what should happen to employees who were legitimately off or late, in circumstances covered by the legislation.  

Key point:  The case is useful as there are relatively few decisions on an employee’s right to take time off work in these circumstances.  Employers should ensure that their managers and decision makers are familiar with their policies and procedures before deciding to dismiss.