Waitress dismissed for unauthorised absence to care for disabled father: tribunal upholds decision

A difficult choice between work and family

This case highlights the tough position employees can face when a family member falls seriously ill. The waitress, who had worked for Burger & Lobster for five years, needed time off to care for her father after he suffered a stroke. She asked for six weeks' unpaid leave, but the restaurant offered only one additional week, citing business pressures. When she did not return, she was dismissed for unauthorised absence.

The tribunal accepted that the claimant faced a genuine dilemma, but the law does not require employers to grant unlimited compassionate leave. The key question was whether the employer acted reasonably in treating her failure to return as misconduct. The tribunal found that the offer of one week was a reasonable response, and that the claimant's refusal to return made the dismissal fair.

What the employer did right

Burger & Lobster followed a proper disciplinary process: they invited the claimant to a hearing, considered her explanation, and allowed an appeal. The tribunal noted that the employer had genuine business needs at a busy time of year. By offering some additional leave and a clear return date, the employer stayed within the 'band of reasonable responses' that tribunals use to judge fairness.

Why the discrimination claim failed

The claimant also argued that her dismissal was associative disability discrimination because of her father's disability. However, the tribunal found that the reason for dismissal was her unauthorised absence, not her father's condition. The Equality Act protects employees from discrimination because of a protected characteristic, but here the employer's decision was based on conduct, not disability. This is a reminder that caring responsibilities alone do not give rise to a discrimination claim unless the treatment is directly linked to the disability itself.