Unauthorised Leave On Christmas Eve

Mrs Stott was employed by the retailer Next and had a clean employment record. She was contracted to work eight hours per week and regularly worked four hours overtime per week. In October 2010 she paid a £50 deposit to attend her husband’s Christmas work function on Christmas Eve.

Mrs Stott paid the deposit assuming that she would not have to work on Christmas Eve. Towards the end of November 2010 a poster was displayed informing staff that they would be required to work on certain dates over the Christmas period including Christmas Eve to prepare the store for the first day of the sales. Mrs Stott left a note for the store manager saying that she could not work on Christmas Eve.

On 9^th December 2010 Mrs Stott spoke to the deputy store manager and showed a willingness to be flexible by offering to work on other days over the Christmas period. Mrs Stott was told that the alternative suggested dates were not acceptable and she would face “disciplinary action” for unauthorised absence if she did not come to work on Christmas Eve.

Mrs Stott did not come to work on Christmas Eve. However she did work on the other days she was required to work over the Christmas period. On 4^th January 2011 Mrs Stott attended a disciplinary hearing at which she was summarily dismissed on the grounds that she had wilfully committed gross misconduct by “simply not attending work because she wanted to go to a party instead”.

Mrs Stott appealed but the dismissal was upheld. Mrs Stott submitted an employment tribunal claim for unfair dismissal on the grounds that she did not realise that she was committing such as serious offence and was not warned by her employer that her failure to work on Christmas Eve was likely to result in her dismissal.

Mrs Stott also claimed her dismissal was unfair because another employee who had refused to work on Christmas Eve was treated differently because she had been given a much more explicit warning of the possible consequences and was given a final written warning when she did not come to work.

Mrs Stott also said that given her previous good employment record, dismissal was too harsh a sanction. Next argued that Mrs Stott knew or ought to have known that unauthorised absence was classed as gross misconduct and was likely to result in dismissal because it is written in the staff handbook which Mrs Stott had signed and she was a long serving employee. The tribunal disagreed that Mrs Stott knew or ought to have known that dismissal was a possible outcome. In addition, the sanction of dismissal for non-attendance was rare at Next and the requirement for extra staff on Christmas Eve was only put in place in 2009 when the sales started earlier on Boxing Day.

The Tribunal also accepted that Mrs Stott’s colleague had been treated differently in similar circumstances. The tribunal acknowledged that Christmas is an important time for the Company but also noted that the company managed without Mrs Stott on Christmas Eve.

The Tribunal noted that a final written warning would have been a more appropriate outcome in the circumstances. While the employment tribunal found that Mrs Stott's dismissal was unfair, it did reduce her compensation by 30% because she had been partly at fault for simply deciding not to come to work on Christmas Eve.

Russell HR Consulting provides expert knowledge in HR solutions, employment law training and HR tools and resources to businesses across the UK.

Subscribe to our free monthly HR newsletter. Russell HR Consulting employment law newsletters are emailed automatically to our ever-growing number of subscribers every month.