Senior auditor dismissed after taking time off to care for ill father: automatic unfair dismissal claim rejected
A tribunal has ruled that a senior internal auditor with one year's service was not automatically unfairly dismissed for taking time off to care for his seriously ill father. The claim was dismissed.
1 min read · Last updated 19 May 2026
Case details
Key facts
- The claimant was employed as a Senior Internal Auditor from 1 December 2020 until 9 December 2021.
- The claimant took time off from 14 October to 1 November 2021 to care for his seriously ill father.
- The claimant's line manager and head of internal audit had expressed concerns about his performance before he requested time off.
- A decision to dismiss the claimant was made by 3 December 2021, following a breakdown in the working relationship.
- The claimant was dismissed on 9 December 2021; the tribunal found it was not for an automatically unfair reason.
Timeline
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Employment offer accepted
The claimant accepted employment with Costain Engineering and Construction Limited as a Senior Internal Auditor.
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Employment started
The claimant began working as a Senior Internal Auditor.
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Performance concerns raised
ET, Head of Internal Audit, provided critical feedback on the claimant's draft Work Winning Report and expressed concerns about his work quality.
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Informal Performance Improvement Plan
The claimant was placed on an informal Performance Improvement Plan focusing on audit, folder structure, field work reporting, and TeamMate.
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Decision to move to formal PIP
MS and ET discussed moving the claimant to a formal Performance Improvement Plan, but delayed due to the claimant's father's cancer diagnosis.
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Claimant informed MS of father's illness
The claimant told MS that his father had colon cancer and he needed time off to care for him.
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Meeting at Maidenhead office
The claimant met with ET and MS; ET was unsympathetic and said 'deadlines are deadlines' when the claimant requested time off.
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Time off started
The claimant began leave to care for his father, initially using holiday and then unpaid leave from 25 October.
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Return to work
The claimant returned to work after his father was home from hospital and chemotherapy arranged.
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Meeting with ET and MS
ET blamed the claimant for delays; the claimant accused ET of bullying due to his time off and said he would escalate to HR.
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Claimant took sick leave
The claimant emailed MS saying he felt stressed and needed time off due to the unbearable situation.
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Access removed
ET removed the claimant's access to the Dynamic System.
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Dismissal decision made
Draft guidance for a meeting with the claimant indicated a decision to dismiss had been made.
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Dismissal meeting
The claimant was dismissed; the tribunal found it was a dismissal, not mutual consent.
The legal issue
The tribunal had to decide whether the employee was dismissed, and if so, whether the reason or principal reason was that he took time off to care for his father (an automatically unfair reason under s.99 ERA 1996).
The outcome
The tribunal decided that the employee was dismissed, but not for an automatically unfair reason.
Key reasons:
- The employer's genuine reason for dismissal was the breakdown in the working relationship and performance issues, which predated the time off.
- The employee did not have sufficient service (2 years) to claim ordinary unfair dismissal.
No compensation was awarded as the claim failed.
Lessons & takeaways
- Employees with less than two years' service cannot claim ordinary unfair dismissal; only automatically unfair reasons (like time off for dependants) can be pursued.
- To succeed in a claim under s.57A, the employee must show that the time off was the principal reason for dismissal, not just a factor.
- Employers should document performance issues before any request for time off to avoid the inference that the dismissal was linked to the leave.
- A breakdown in working relationships, if genuine and not connected to the time off, can be a fair reason for dismissal even when the employee has taken dependant leave.
What this case shows in practice
A senior internal auditor with just over a year's service took time off in October 2021 to care for his father, who had been diagnosed with colon cancer. He returned to work in November, but the working relationship with his line manager had deteriorated. The employee alleged that his manager was unsympathetic and blamed him for delays. After a series of meetings, the employee was dismissed in December 2021.
The employee claimed automatic unfair dismissal, arguing that the reason for his dismissal was the time he had taken off to care for his father. However, the tribunal found that the employer's genuine reason was a breakdown in the working relationship and performance concerns, which had been raised before the time off was requested.
What the employer did right
Costain Engineering and Construction Limited had documented performance concerns as early as July 2021, and had placed the employee on an informal Performance Improvement Plan in August 2021. This evidence was crucial in showing that the dismissal was not linked to the time off. The tribunal accepted that the employer's decision was based on the breakdown in the relationship and the employee's performance, not on the fact that he had taken dependant leave.
Why this result matters
This case highlights the importance of the 'reason' for dismissal in automatic unfair dismissal claims. Even where an employee has taken protected leave, the dismissal will only be automatically unfair if the leave was the principal reason for the dismissal. Employees with less than two years' service are particularly vulnerable, as they cannot bring ordinary unfair dismissal claims. Employers who can show a genuine, pre-existing reason for dismissal, such as performance or relationship breakdown, may successfully defend such claims.
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