Dismissed after furlough recall: drivers who misled employer lost unfair dismissal claim
Two drivers were fairly dismissed for gross misconduct after they misled their employer about their whereabouts when recalled from furlough. The tribunal upheld the dismissals but found the employer breached contract by failing to give notice.
1 min read · Last updated 18 May 2026
Case details
- #furlough-recall
- #misleading-employer
- #unauthorised-absence
- #covid-19-pandemic
- #polish-nationals
Key facts
- The claimants were employed as drivers and dismissed without notice on 25 May 2020.
- They were furloughed during the pandemic and recalled to work in April 2020.
- The claimants were in Poland when recalled and did not return immediately.
- The respondent believed the claimants misled them about their whereabouts.
- The tribunal found the dismissals for misconduct were fair but the respondent breached contract by dismissing without notice.
Timeline
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First claimant started employment
Mr Mariusz Swica began working as a driver for Acrelane Timber Ltd.
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Second claimant started employment
Mrs Angelika Swica began working as a driver for the respondent.
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Furlough agreement signed
Both claimants signed furlough agreements, agreeing to be placed on furlough leave.
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Recall phone call
Mrs Kruzynska called the claimants to inform them of the reopening and request their return to work.
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Text message exchange
The second claimant texted Mrs Kruzynska asking about reopening and said they would come to work on Monday.
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Phone call with Mr Crampsie
The first claimant called Mr Crampsie, initially claiming to be in London but later corrected by his sister.
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First claimant attended site
The first claimant returned to the UK and attended the respondent's site but was told to self-isolate.
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Invitation to disciplinary hearing
Both claimants received letters inviting them to a disciplinary hearing on 25 May 2020.
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Disciplinary hearing and dismissal
The disciplinary hearing was held, and both claimants were summarily dismissed for gross misconduct.
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Appeal letter sent
The claimants' representative sent letters headed 'APPEAL AGAINST DISMISSAL' to the respondent.
The legal issue
The tribunal had to decide whether the drivers' dismissals for misconduct were fair under section 98 of the Employment Rights Act 1996, and whether the employer was entitled to dismiss without notice for breach of contract.
The outcome
The tribunal decided that the dismissals for misconduct were fair. The employer had a genuine belief that the drivers had misled them about their whereabouts when recalled from furlough, and that belief was based on reasonable grounds after a reasonable investigation.
However, the employer breached the drivers' contracts by dismissing them without notice. The misconduct was not serious enough to justify summary dismissal without notice.
No compensation was awarded as the unfair dismissal claims failed. The breach of contract claims were successful but no damages were specified in the judgment.
Lessons & takeaways
- Employers can fairly dismiss for misconduct if they have a genuine belief, reasonable grounds, and carry out a reasonable investigation.
- Misleading an employer about your location during furlough recall can amount to gross misconduct.
- Even if a dismissal for misconduct is fair, the employer may still be liable for breach of contract if they fail to give proper notice.
- Employees should be honest about their whereabouts when recalled from furlough to avoid disciplinary action.
What this case shows in practice
This case highlights the importance of honesty when an employer recalls staff from furlough. The two drivers, who had been employed for four and three years respectively, were in Poland when their employer, Acrelane Timber Limited, asked them to return to work in April 2020. Instead of being upfront, they initially claimed to be in London, which led to their dismissal for gross misconduct.
The tribunal accepted that the employer genuinely believed the drivers had misled them, and that this belief was reasonable after a proper investigation. The dismissals for misconduct were therefore fair. However, the employer made a procedural error by dismissing without notice. The tribunal found that the misconduct, while serious, did not justify summary dismissal, meaning the employer breached the drivers' contracts.
What the losing side could have done differently
The drivers could have avoided dismissal by being honest about their location from the start. If they had explained they were in Poland and needed time to return, the employer might have handled the situation differently. For the employer, the key lesson is to ensure that dismissal without notice is only used for the most serious cases of gross misconduct. Here, the tribunal decided that the drivers' actions did not meet that threshold, so the employer should have given notice or paid in lieu.
Why this result matters for similar claims
This case shows that employers can fairly dismiss for misconduct even when the employee has a good service record, as long as the investigation and decision are reasonable. However, it also serves as a reminder that 'fair dismissal' and 'proper notice' are separate issues. Employees who are fairly dismissed may still have a claim for breach of contract if notice is not given. For anyone considering a claim, it is worth checking both the fairness of the dismissal and whether the correct contractual procedures were followed.
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