Unauthorised day off = gross misconduct :-(

[m1nna]

Hi guys, newbie here! :-)

Long story short - I recently took an unauthorized day off work. I took this day off as it was a religious festival.
I have now been advised this will result in a disciplinary for possible gross misconduct (which could lead to dismissal).
I initially assumed this would be treated as an absence which would be unpaid (as on previous occasions but for diff reasons).

My honest case is - I have never been given any documentation which has outlined what would constitute as an absence or what could trigger a disciplinary.

Do I have a sound enough reason?
What advice may you guys have?

God bless y'all.

[charitynjw]

Re: Unauthorised day off = gross misconduct :-(

Hi m1nna & welcome to LB.

How long have you worked for the firm?
Have you received a contract of employment, or a statement of employment particulars?
Can you access the firm's Disciplinary/Grievance procedure?

At first blush it would seem somewhat draconian to view one hookey day as GM.

[wales01man]

Re: Unauthorised day off = gross misconduct :-(

Why did you not get this day off agreed?

[Kati]

Re: Unauthorised day off = gross misconduct :-(

If it was a religious holiday (and you have been allowed to have these off before) then I cannot see it being classed as GM either :noidea:

tagging [MENTION=77627]Openlaw15[/MENTION]

[charitynjw]

Re: Unauthorised day off = gross misconduct :-(

If it was a religious holiday (and you have been allowed to have these off before) then I cannot see it being classed as GM either :noidea:

tagging @Openlaw15

The religious holiday aspect may be a red herring because the issue involves taking an unauthorised day off, & is not necessarily linked directly to a protected characteristic.
The employer might do the same (disciplinary) to any other employee who takes an unauthorised day off, regardless of the reason.
[MENTION=88564]m1nna[/MENTION]
Did you ask for time off which was refused, but you took it regardless?

[Openlaw15]

Re: Unauthorised day off = gross misconduct :-(

Hi guys, newbie here! :-)

Long story short - I recently took an unauthorized day off work. I took this day off as it was a religious festival.
I have now been advised this will result in a disciplinary for possible gross misconduct (which could lead to dismissal).
I initially assumed this would be treated as an absence which would be unpaid (as on previous occasions but for diff reasons).

My honest case is - I have never been given any documentation which has outlined what would constitute as an absence or what could trigger a disciplinary.

Do I have a sound enough reason?
What advice may you guys have?

God bless y'all.

Normally, it could be a Freedom of religion defence. However, the employer, also normally, should have been notified of the intended occasion. If the employer knows you often take this day off - ie it's a recognised religious holiday according to your faith then it is potentially an abuse of a human right: freedom of religion. It is possibly a direct discrimination claim. It is potentially a direct discrimination claim under the Equality Act because only you are on a disciplinary for observing your religion. If there were other such religious employees applicable to this specific religion/ circumstance but they never observed it (the holiday), it's potentially indirect discrimination as only you were affected for observing your religion.

[charitynjw]

Re: Unauthorised day off = gross misconduct :-(

Normally, it could be a Freedom of religion defence. However, the employer, also normally, should have been notified of the intended occasion. If the employer knows you often take this day off - ie it's a recognised religious holiday according to your faith then it is potentially an abuse of a human right: freedom of religion. It is possibly a direct discrimination claim. It is potentially a direct discrimination claim under the Equality Act because only you are on a disciplinary for observing your religion. If there were other such religious employees applicable to this specific religion/ circumstance but they never observed it (the holiday), it's potentially indirect discrimination as only you were affected for observing your religion.

Hi Openlaw

Imho, even if this could be regarded as a discrimination issue (& I have serious reservations about that), the employer would surely defend it on proportionate means to achieving a legitimate aim? (indirect discrim).

[wales01man]

Re: Unauthorised day off = gross misconduct :-(

Freedom of religion to take a day off when you want! common sense says notify employer and get day off if refused then claim freedom of religion

[Kati]

Re: Unauthorised day off = gross misconduct :-(

[MENTION=88564]m1nna[/MENTION] ... to clarify, did you request the day off and your employer refused or did you just take the day off regardless??

[Openlaw15]

Re: Unauthorised day off = gross misconduct :-(

Hi Openlaw

Imho, even if this could be regarded as a discrimination issue (& I have serious reservations about that), the employer would surely defend it on proportionate means to achieving a legitimate aim? (indirect discrim).

It may not be a legitimate aim to put someone on a disciplinary just because they had taken the day off - especially if the op were a Muslim - their rights are protected in human rights because it's mandatory part of their faith to observe religious days etc. Was it a proportionate measure by the employer, may be not because a written warning would have been in proportion, taking a day off work for said purpose to then be put on a disciplinary in my view does not match the principle of proportionality. I don't necessarily agree that it's fair or justified but am giving my objective view of the law as I understand it, and not my personal opinion.

[charitynjw]

Re: Unauthorised day off = gross misconduct :-(

It may not be a legitimate aim to put someone on a disciplinary just because they had taken the day off - especially if the op were a Muslim - their rights are protected in human rights because it's mandatory part of their faith to observe religious days etc. Was it a proportionate measure by the employer, may be not because a written warning would have been in proportion, taking a day off work for said purpose to then be put on a disciplinary in my view does not match the principle of proportionality. I don't necessarily agree that it's fair or justified but am giving my objective view of the law as I understand it, and not my personal opinion.

The legitimate aim, I suspect, would be the efficient running of the business, which would be disrupted by people (employees) taking unauthorised leave. (Accidents, illness etc excepted).
But I agree re proportionality; as stated earlier, it does appear draconian.
As you've mentioned elsewhere, without further info from the OP, we're stabbing in the dark.
The case will probably turn on the facts.

[Openlaw15]

Re: Unauthorised day off = gross misconduct :-(

The legitimate aim, I suspect, would be the efficient running of the business, which would be disrupted by people (employees) taking unauthorised leave. (Accidents, illness etc excepted).
But I agree re proportionality; as stated earlier, it does appear draconian.
As you've mentioned elsewhere, without further info from the OP, we're stabbing in the dark.
The case will probably turn on the facts.

that wouldn't be the legitimate aim - that would be the employer's excuse. The legitimate aim means something genuine.

[charitynjw]

Re: Unauthorised day off = gross misconduct :-(

that wouldn't be the legitimate aim - that would be the employer's excuse. The legitimate aim means something genuine.

Lol!

They can still use it; it would be for the Tribunal to attempt to look behind the employer's defence.

[m1nna]

Re: Unauthorised day off = gross misconduct :-(

Hi m1nna & welcome to LB.

How long have you worked for the firm?
Have you received a contract of employment, or a statement of employment particulars?
Can you access the firm's Disciplinary/Grievance procedure?

At first blush it would seem somewhat draconian to view one hookey day as GM.

I have worked for the firm for just over 2 years now (1yr temp then perm).
I have never received a contract of employment or any policies which relate to holidays/absences/disciplinary ect.

I asked for a 1 day holiday (2.5 weeks in advance) which was refused, I then filled in a form for 'time out of work' (1 week in advance). I knew this would be unpaid & that I would be 'managed' on my return to work. I have taken time off for appointments before in the same way & this has only been classed an absence & unpaid. So I didn’t think it would be any different & neither was I advised that it may be any different.

[Anthony72]

Re: Unauthorised day off = gross misconduct :-(

I am assuming that you have not had any previous disciplinary actions for any reason?

Was this for the relatively recent Eid celebration? If it was, did you tell your employer what it was for?