The Claimant went absent without leave during the early part of the Covid-19 pandemic in order, he said, to care for his vulnerable mother. He refused to return to work even after disciplinary proceedings were threatened. The Claimant was invited to attend a disciplinary hearing on 25 February 2021 which was rescheduled to 4 March 2021 when again the Claimant did not attend. On 11 March 2021 a letter was sent to the claimant by email informing him that he had been dismissed and notifying him of a right of appeal but the claimant did not exercise that right of appeal. The Claimant agreed he was absent from work without authorisation but that he did not need authorisation as he was providing care for his mother and the law provides that unpaid carers can take time off in emergency cases. The ET concluded as a matter of fact that the reason for the Claimant’s dismissal was the Respondent’s belief that the Claimant had failed to attend work without having permission from the Respondent not to attend work. The ET also said that the Claimant was not entitled by virtue of s57A ERA 1996 to take the relevant period off work without authority from his employer and that the Respondent was fully entitled to treat his unauthorised absence as gross misconduct. The Claimant appealed.

The EAT dismissed the appeal. The ET concluded that the Claimant did not have authorisation to be absent and knew he did not have authorisation to be absent and that the Respondent dismissed him for being absent without authorisation. The contact that the Claimant said he had with the Respondent did not change the substance of that case in any way.