Dismissed for absence without leave after childcare crisis: claim fails
A Border Readiness Operative with less than two years' service was dismissed for being absent without leave after his authorised childcare leave ended. The tribunal upheld the dismissal, finding it was not automatically unfair.
2 min read · Last updated 18 May 2026
Case details
- #sole-carer
- #childcare-crisis
- #redundancy-consultation
- #acas-code
- #flexible-working
Key facts
- The claimant was employed as a Border Readiness Operative from 16 December 2020.
- His role was abolished on 10 May 2021 and he was at risk of redundancy.
- He became the sole carer of his 4-year-old son on 6 May 2021.
- He was granted authorised leave from 7 to 21 May 2021 for childcare.
- After 21 May 2021 he did not attend work and did not request further leave.
- He was dismissed on 6 July 2021 for being absent without leave.
Timeline
-
Employment started
Claimant began work as a Border Readiness Operative at HMRC site Sevington.
-
Redundancy notice
Claimant informed that Border Readiness checks would end and he was at risk of redundancy.
-
Alternative roles offered
Claimant notified of alternative roles including booth operator with same terms.
-
Left work due to stress
Claimant went home from work due to stress and anxiety.
-
Became sole carer
Claimant's partner left him; he became sole carer of his 4-year-old son.
-
Authorised leave granted
Claimant requested and was granted two weeks' unpaid leave for childcare until 21 May 2021.
-
Declined meeting
Claimant refused to attend a meeting, stating he wanted redundancy.
-
Authorised leave ended
Claimant's authorised leave expired; he did not return to work or request extension.
-
Invitation to disciplinary meeting
Claimant invited to a formal AWOL meeting on 1 July 2021; he did not attend.
-
Dismissal
Claimant summarily dismissed for being absent without leave and failing to engage.
The legal issue
The tribunal had to decide whether the claimant's dismissal was automatically unfair because he took time off for dependants, and whether the respondent indirectly discriminated against him on grounds of sex by requiring in-person meetings, a medical appointment, and short notice meetings.
The outcome
The tribunal dismissed all claims. The claimant was not automatically unfairly dismissed because the reason for dismissal was his failure to attend work or engage with the employer after his authorised leave ended, not the fact that he had taken time off for dependants. The indirect sex discrimination claim also failed because the claimant did not provide evidence of a particular disadvantage to women compared to men in similar circumstances.
No compensation was awarded.
Lessons & takeaways
- If you have less than two years' service, you can only claim unfair dismissal if the reason is automatically unfair, such as taking time off for dependants — but you still need to follow your employer's procedures and keep them informed.
- Authorised leave for childcare does not give you an indefinite right to be absent; you must request further leave or explain your situation when the leave ends.
- To succeed in an indirect discrimination claim, you need evidence that a particular policy or practice puts people with your protected characteristic at a disadvantage — general assertions are not enough.
A childcare crisis that led to dismissal
The claimant became the sole carer of his four-year-old son at short notice and was granted two weeks' unpaid leave. When that leave ended, he did not return to work or ask for more time off. Despite several attempts by his employer to arrange meetings and discuss his situation, he did not engage. After six weeks of absence, he was dismissed for being absent without leave.
What the tribunal decided
The tribunal accepted that the claimant had a genuine childcare crisis, but found that his absence after 21 May 2021 was not protected by the right to time off for dependants. That right requires employees to tell their employer the reason for absence and how long they expect to be away. The claimant did not do this after his authorised leave expired. The principal reason for dismissal was his failure to attend work and engage, not the fact that he had taken time off.
Why the indirect discrimination claim failed
The claimant argued that requiring him to attend in-person meetings, provide a medical report, and attend meetings at short notice put women at a disadvantage because they are more likely to be primary carers. However, he provided no evidence to support this — no statistics, research, or examples. The tribunal noted that the employer had offered alternatives such as telephone meetings and had tried to accommodate his situation. Without evidence of group disadvantage, the claim could not succeed.
What this means for similar cases
This case is a reminder that the right to time off for dependants is not open-ended. Employees must keep their employer informed and seek further leave if needed. For those with less than two years' service, the protection against automatic unfair dismissal only applies if the reason for dismissal is the protected act itself — not the subsequent failure to communicate. It also shows that indirect discrimination claims require solid evidence, not just personal experience.
Similar cases
NHS employee loses unfair dismissal and discrimination claims but avoids costs order
An NHS employee's unfair dismissal and discrimination claims were dismissed, but the tribunal refused the Trust's application for costs, finding she had a genuine belief in her case and did not act unreasonably.
Emergency medical technician dismissed for using racist language: 15 years' service didn't save her job
A tribunal has upheld the dismissal of an EMT with 15 years' service who used the n-word about a black colleague on two occasions, finding the employer's investigation and decision were within the range of reasonable responses.
18-year employee loses constructive dismissal claim over flexible working refusal
An engineer with 18 years' service resigned after his request for a four-day week was refused. The employment tribunal found his employer had reasonable cause and dismissed the claim.
Regional manager dismissed for failing to follow safeguarding policy: dismissal fair
A regional manager with 10 years' service was fairly dismissed after admitting she had not been following the employer's safeguarding policy for external reporting in secure settings.