Incorrect application of absence policy led to unfair dismissal

In Sakharkar v Northern Foods Grocery Group Ltd [EAT/0442/10], the employer’s absence policy had four stages. A hearing took place at each stage.

A second; third; or fourth hearing was triggered - if an employee had attained a certain level of absences – during the 12 months after the preceding hearing.

At the third stage hearing, Mr Sakharkar was given a final warning. However, the level of Mr Sakharkar’s absences – during the 12 months after the second stage hearing – did not qualify him for the warning. Mr Sakharkar and his employer were unaware of the error.

The invalid final warning and further absences by Mr Sakharkar led to his dismissal at the fourth stage hearing. He claimed that his dismissal was unfair.

The role of the HR department

The absence policy stated that the HR department was:

“responsible for auditing of absence levels and providing advice, support and training to line managers to ensure the fair and consistent application of this policy”.

The absence policy also provided that a member of the HR department should be present at the third and fourth stage hearings.

EAT’s decision

The EAT held that Mr Sakharkar had been dismissed for “some other substantial” reason but his dismissal was unfair.

The administrative resources of an employer must be taken into account when determining the fairness of a dismissal. The employer had not acted reasonably if one took into account its administrative resources in the HR department.

It was the responsibility of the HR department to ensure that the manager - had given a valid final warning to Mr Sakharker at the third stage hearing - and dismissed him in accordance with the absence policy at the fourth stage hearing.