Unfairly Dismissed...what next

kenziesmummy

Hello, my partner worked for a company for a week and a bit (he works in construction) however had to call in to care for our son as the childminder called in sick unexpectantly one day.

We have contacted ACAS who advised although he had only worked for a week, he was excersizing his right to take time off for dependants and therefore this would be viewed as 'automatically unfair' We were advised to contact his employer via recorded delivery and appeal this decision (which we have done.) and request a reply withing 14 days. I am also angry at the way it was done (over the phone, no meeting to discuss etc) Anyway the 14 days are nearly up (we have heard nothing back) and I am panicking for the following reasons

a) what do we do now?

b) what if, as everything was verbal, his boss says he called in sick (as opposed to calling in to care for our child) or worse says he didnt call in etc? Is it his word against ours? (we have proof of the childminder cancelling and also the phonecall he made 2 minutes afterwards to his boss) but could he say my husband called in sick/didnt give enough notice etc

c) can we also complain about the way he was dissmissed ie over the phone and told not to come back

Thanks you for your help in advance!

robpw2

he worked there a week a company can get rid of somene without notice during the probationary period without reason check contract for your probation time

unless its to do with direct discrimination then unfortuanelty you cannot claim for unfair dismissal in the first year soon to be 2 years

i think he best sign on / look for another job

marybelle01

ACAS are wrong - and that is sooo unusual. The actual right to to unpaid time off to deal with an emergency relating to a dependant. To deal with it - not to do it yourself. So if your childminder calls in sick this right allows you to arrange for alternative child care - but not for time off to be that child care.

Uncertain

marybelle01 wrote: »

ACAS are wrong - and that is sooo unusual. The actual right to to unpaid time off to deal with an emergency relating to a dependant. To deal with it - not to do it yourself. So if your childminder calls in sick this right allows you to arrange for alternative child care - but not for time off to be that child care.

Yes and no!

Yes, there is a legal right to "short periods" of unpaid leave to deal with such emergencies. I agree that this is normally taken to mean arranging for alternative care and not doing it yourself. However, this cannot happen instantly so initially he may have had to provide the care himself.

As with so many things there are no hard and fast limits so ACAS may be right in this instance if we are only talking about a day or two. It would help if he could show that he had made reasonable efforts to arrange care and keep the time off to a minimum.

Uncertain

robpw2 wrote: »

he worked there a week a company can get rid of somene without notice during the probationary period without reason check contract for your probation time

unless its to do with direct discrimination then unfortuanelty you cannot claim for unfair dismissal in the first year soon to be 2 years

i think he best sign on / look for another job

Subject to my comments above, this is a protected area so there is no qualifying period.

McKneff

Children are always getting sick though, its normal, was he going to be doing it on a regular basis.

Any reason why you couldn't have seen to the child.

kenziesmummy

Thanks for all your help, of course there is a reason why i could not care for our child.....and if i could have i would have (i have worked for my company for 7 years, work 42 hours a week and wouldnt have been fired for one!)

My husband gets our son ready and takes him to the childminder as work overnight sleepovers once a week....he tried to contact me but as i was working, didnt have my phone on me and again i was working.

My husband has been off sick once (for one day) in his entire life, so no he wouldnt have made it a regular occurance. He had also phoned our only other source of childcare (my husbands great gran) and was arranging to drive our son to her home (45 minutes away) so he could go into work (albeit late) when he was phoned and informed not to come back into work.....

our only other option wouldve been to take him into his work with him

p.s it wasnt my child who was sick, my childminder caught the norovirus and text us during the night to inform us she wouldnt be able to work....on all other occasions i have been granted carers leave from my work

princessdon

He was entitled to time off work (unpaid) and so this is "unfair".

but to balance it - they don't have to give a reason for dismissal and this isn't a protected characteristic (as far as I know). He'd also have to prove he didn't phone in sick etc as you say.

In all honesty - does he want to work for a company like that?

If not best move on - ensuring he gets paid for work he did do.

getmore4less

princessdon wrote: »

He was entitled to time off work (unpaid) and so this is "unfair".

but to balance it - they don't have to give a reason for dismissal and this isn't a protected characteristic (as far as I know). He'd also have to prove he didn't phone in sick etc as you say.

In all honesty - does he want to work for a company like that?

If not best move on - ensuring he gets paid for work he did do.

AIUI All statutory rights are protected.

princessdon

yes - but how do you PROVE that was victimisation - I'm not 100% sure on what is protected (sex, race etc) but allowing unpaid time off I'm not 100% sure of - given that dependant leave is usually contractual. All they have to do is give any reason under the sun as to why - say he phoned in sick or anything.

But I don't have the experience you do - but I wasn't aware that taking unpaid leave as an emergency without permission was protected.

Do you think an unfair dismissal claim would work given the circumstances?

Uncertain

princessdon wrote: »

But I don't have the experience you do - but I wasn't aware that taking unpaid leave as an emergency without permission was protected.

Evidently!

princessdon wrote: »

yes - but how do you PROVE that was victimisation - I'm not 100% sure on what is protected (sex, race etc) but allowing unpaid time off I'm not 100% sure of - given that dependant leave is usually contractual. All they have to do is give any reason under the sun as to why - say he phoned in sick or anything.

It is a protected legal right as I explained above. Contractual terms may increase the entitlement but can't reduce it.

Obviously there is always the danger of an employer lying but, in a discrimination case, the onus is on them to prove that the were not discriminating unlawfully.

I suspect the firm have just ignored the letter assuming (wrongly) that there is no claim due to not having been employed long enough.

princessdon wrote: »

Do you think an unfair dismissal claim would work given the circumstances?

Yes, well worth a try.