Possible Unfair Dismissal Advice Needed Please

UnderPressure

Hello

I wonder if some of you in the know could offer me some advice for a friend of ours. Last week on a Sunday his Mum was rushed into hospital with a ruptured appendix, she needed to have emergency surgery there and then, he rang his employer on the Sunday afternoon to make them aware of the situation and tell them there was a possibility he might not be able to attend work on the Monday morning, his employer told him that they needed him to attend work as they were already short staffed, friend told his employer he would keep them updated.
Fast forward to the Monday morning and the Mum had had her surgery but had not come around from the anesthetic, Doctors etc were quite concerned so friend telephoned his employer to explain and tell them he would not be attending work as he wanted to stay by his Mum's bedside, quite understandably, employer was not happy and sacked friend on the phone.
Now we have had advice from the CAB who have told us as he was employed for less that 2 years they could not help, our own research suggest that he has a case for unfair dismissal what do you think and what should be his next course of action?

Thanks in advance.

InsideInsurance

He was absent without leave as there is no automatic right to compassionate leave.

Secondly the CAB is, unusually, correct. You have no right to claim unfair dismissal in the first 2 years of employment unless its for a protected characteristic (eg being disabled, sexism etc)

The only possible argument could be over if notice period pay is required or not but will allow someone else to comment on that one.

cr1mson

What would the grounds be for unfair dismissal? I am assuming you are thinking that althoug he has been employed for less than two years you could argue that the dismissal was automatically unfair.

However the reasons for this are quite specific as shown below
pregnancy, including all reasons relating to maternity
family, including parental leave, paternity leave (birth and adoption), adoption leave or time off for dependants
acting as an employee representative
acting as a trade union representative
acting as an occupational pension scheme trustee
joining or not joining a trade union
being a part-time or fixed-term employee
discrimination, including protection against discrimination on the grounds of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation (in Northern Ireland, this also includes political beliefs)
pay and working hours, including the Working Time Regulations, annual leave and the National Minimum Wage
whistleblowing

None of this would apply unless his Mum was a dependant which sounds like she isn't.

UnderPressure

Thanks fro the replies so far I appreciate your time

We found this:

http://www.lawdonut.co.uk/law/employment-law/dismissals-and-redundancies/dismissing-employees-faqs

Point 14 says:

"There will automatically be a finding of unfair dismissal against you, if you sack anyone of any age or length of service for any of the following reasons:

taking leave for family reasons including pregnancy, maternity leave and pay, paternity leave and pay, adoption leave and pay, childbirth and parental leave
taking leave for family emergencies or to care for dependants (even if, as in a case in 2008, the employee knew she would need to take time off to look after her child two weeks in advance, and failed to organise alternative arrangements)"

We thought this might apply in this case?

Poppie68

His employer would still need to agree to the time off, emergency or not. Sitting next to his mums bedside after surgery also won't constitute an emergency.

UnderPressure

Well there was a few hours of extreme worry for her as she had not come round from the anesthetic and was not responding to treatment in a way the Doctors were happy with, if it had been a normal surgery and she had woken up he would have attended work but under the circumstances for a while it was unsure if she was going to wake at all this is why he wanted to stay with her.

cr1mson

The emergency needs to involve a dependant his Mum isn't. For these purposes she doesn't count as family.

Undervalued

UnderPressure wrote: »

Well there was a few hours of extreme worry for her as she had not come round from the anesthetic and was not responding to treatment in a way the Doctors were happy with, if it had been a normal surgery and she had woken up he would have attended work but under the circumstances for a while it was unsure if she was going to wake at all this is why he wanted to stay with her.

I fully understand how he felt but I doubt if that is sufficient if his employer chooses to take a very firm line.

As has been pointed out there is no legal right to compassionate leave and the hard fact is that an adult relative who is in hospital is not dependant on him at that moment.

I would like to think that the majority of employers would have been more understanding if the circumstances are exactly as you describe but the law does not insist on this.

Arguably this is misconduct rather than gross misconduct in which case he is entitled to a weeks notice (or more if his contract so requires) or pay in lieu. Either way he is entitled to be paid for any untaken holiday.

UnderPressure

Thanks for all the replies, again I really appreciate your time in trying to help with this. So essentially there is little he can do apart from making sure he is paid the relevant notice period and any holiday pay owed?

I am staggered an employer can get away with treating an employee like this, putting aside the emotional aspect he has essentially been sacked for missing a days work, I am amazed there is no recourse for him, can you really be sacked over the phone for missing 1 days work? So if you have worked somewhere less than 2 years and you ring in sick, for example, your employer can sack you on the spot and you have no legal recourse at all?

Deeeliteful

I have nothing further to add apart from - you only get one mother and father, but you can always get another job.

Speedy recovery to his mother and hope he can find a new job soon.

Poppie68

His employer isn't getting away with anything.... he asked for the time off, his employer said no....as rules/law allows them too, but you friend took the time anyway.... as already said his mother isn't a dependent, if it was a spouse or child the outcome would of most probably been different.