Amanuel Ghebrehiwt v Wilson James Ltd

A prolonged absence from work without the employer’s authorisation may constitute gross misconduct, particularly where the employee continues to be absent after being warned that disciplinary action will follow. Informing an employer of an intended absence does not amount to seeking or obtaining authorisation.

In a wrongful-dismissal claim, the tribunal must determine for itself whether the conduct was gross misconduct. It must not merely ask whether the employer acted within the range of reasonable responses. An appellate tribunal will not set aside a decision for an omitted matter or procedural irregularity unless it caused material injustice.

The claimant was summarily dismissed after remaining absent from work without authorisation between January and March 2021. He said that he was caring for his vulnerable mother during the Covid-19 pandemic and relied on section 57A of the Employment Rights Act 1996.

The East London Employment Tribunal dismissed his claims for unfair and wrongful dismissal. It found that section 57A did not entitle him to take the extended absence in order personally to provide care, and that the respondent was entitled to treat the unauthorised absence as gross misconduct.

The claimant appealed on four permitted grounds. They concerned the reason for dismissal, refusal to admit further evidence, alleged lack of impartiality in the disciplinary process, and the treatment of wrongful dismissal.

1. Appeal dismissed. The Employment Tribunal made no error of law in finding that the reason for dismissal was the claimant’s unauthorised absence, rather than an alleged failure to maintain contact with the respondent. The evidence about contact was immaterial to that reason. Telling an employer that an employee will remain absent is not the same as requesting or receiving authorisation. Continued unauthorised absence after a warning of disciplinary action was capable of constituting misconduct sufficient to justify dismissal.

2. The Tribunal was not required to address every item of evidence or every argument. Its reasons, read fairly and as a whole, sufficiently explained why it rejected the alleged ulterior motives for dismissal. The further answers obtained through the Burns/Barke procedure legitimately supplemented the original reasons and were not an impermissible post hoc justification.

3. The Tribunal should formally have determined the claimant’s request to adduce further evidence and explained its refusal. However, its omission caused no material unfairness. The proposed material concerned contact with the respondent and could not affect the decisive fact that the claimant was absent without authorisation. The differing treatment of the parties’ evidence applications did not create a real possibility of apparent bias.

4. The Tribunal’s conclusion that the disciplinary process was impartial was neither perverse nor inadequately reasoned. The absence without leave was admitted and did not require an investigation into contested events. There was no evidence that the disciplinary chair or other managers acted from an improper motive.

5. For wrongful dismissal, the Tribunal had to decide objectively whether gross misconduct occurred, rather than apply a range-of-reasonable-responses test. Read in context, it had done so: it found that the claimant had no entitlement under section 57A of the Employment Rights Act 1996 to take the relevant absence without authority and that his prolonged conduct amounted to gross misconduct. In any event, no reasonable tribunal could have found that the prolonged, warned-against absence was not gross misconduct or repudiatory conduct.

• Employment Appeal Tribunal: Dismissed the claimant’s appeal: [2025] EAT 50.
• Employment Tribunal (East London): Dismissed the claims for unfair dismissal and wrongful dismissal in a judgment sent to the parties on 26 July 2022. A holiday-pay claim was subsequently reconsidered and determined in the claimant’s favour.