An employment tribunal has held that an employee who had a hour's pay deducted from his wages and was subsequently dismissed after he arrived late for work because he had to make emergency childcare arrangements, was subjected to a detriment and unfairly dismissed for asserting his statutory right to take time off to care for dependants (Clarke v Credit Resource Solutions).

When his family’s normal childcare arrangements fell through due to illness, Mr Clarke had to arrange emergency cover and arrived half an hour late for his shift.  The company applied its normal “lateness policy” and asked him to sign a "late form" agreeing to a deduction from his salary of one hour's pay.  Although he refused to do so, the company made the deduction anyway. When Mr Clarke complained, he was summoned to a disciplinary hearing to discuss his alleged threatening behaviour when making the complaint and his failure to follow reasonable instructions (i.e. his continuing refusal to sign the late form).  At the disciplinary hearing the company told Mr Clarke that, if he issued a written apology and signed the late form, he would be given a final written warning, but otherwise he would be dismissed.  He refused to do either and was duly dismissed for gross misconduct.

The employment tribunal found that Mr Clarke had been late for work because he had to make emergency childcare arrangements and that the time he had taken off was reasonable in the circumstances.  He was therefore legitimately exercising his statutory right to take time off to care for dependants.  The company had subjected him to a detriment for exercising a statutory right by putting pressure on him to sign a late form and deducting an hour's pay from his salary.  The employment tribunal also held that the real reason for the company’s decision to dismiss was Mr Clarke’s refusal to sign the late form.  The reason for the dismissal was therefore connected with the claimant exercising his statutory right and the dismissal was automatically unfair.

Impact on employers

  • The company had introduced the late form and deduction of wages practice to combat persistent lateness.  It also had a policy in place dealing with time off for dependents, but it had taken neither the terms of the dependents' policy nor the underlying statutory right into account when enforcing the lateness policy.  In fact, none of the company’s witnesses was aware of the time off for dependents policy or its relevance to Mr Clarke’s circumstances.
  • Any policy and practice on timekeeping and absence should take account of the different position where an employee is late or absent because they are exercising a statutory right to time off.
  • As this case (and countless before) illustrate, a policy on its own will not be sufficient to protect an employer.  Managers should receive training and guidance on the application of such policies.
  • As a secondary issue, the employment tribunal held that contractual clauses allowing the company to deduct sums due to it and to change employees’ terms and conditions did not permit the company to introduce practices such as "docking wages" without express consent.   This is an illustrative reminder that employers wishing to introduce changes to terms and conditions, especially if the changes are detrimental to the employees, will find it difficult to enforce such changes unless they have obtained prior employee consent.
  • The claimant in this case had less than one year's service and could not bring an "ordinary" unfair dismissal claim.  In view of Government proposals to extend the qualification period for unfair dismissal claims to two years, this case is a timely reminder to employers that, even although they may not have to defend an "ordinary" unfair dismissal claim, if the reason falls into one of the "automatically unfair" categories (which include exercising certain statutory rights, dismissal related to pregnancy or maternity and dismissal relating to whistle blowing) they may still be vulnerable to unfair dismissal claims, regardless of the employee's length of service.

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