As an Employer do you know your rights?

Next employee unfairly dismissed for refusal to work Christmas Eve shift.

Whilst this case was originally heard a few years ago it still serves as a good reminder that not all employers get it right!.

“A store manager for this large retailer took the wrong approach to a shift worker who insisted that she was not able to work on Christmas Eve, in a cautionary tale for employers that have strict rules requiring employees to work during the Christmas period.

Mrs Stott, an “exemplary” employee with a clean employment record, worked eight contractual hours and about four hours’ overtime per week for the retailer Next. In October 2010, she paid a £50 deposit to attend her husband’s Christmas work function on 24 December 2010. At that time, she assumed that she would not have to work on Christmas Eve.

Around the end of November 2010, a poster appeared in the store stating that all staff would be required to work on Christmas Eve, 27 December and 28 December, under either their contractual hours or as overtime. The company did not provide any further information on this requirement.

The employer later gave evidence to the employment tribunal that, not only was Christmas a crucial trading period, but extra staff were needed on Christmas Eve to prepare the store for Boxing Day (the first day of the sales).

Mrs Stott left a note on the desk of the store manager, Ms Bennett, saying that she could not work on Christmas Eve. Mrs Stott later gave evidence to the tribunal that, while she knew that she was required to work on Christmas Eve, she believed that she had given adequate notice that she would not be available on that day. She also argued that, on 9 December 2010, she had spoken to the deputy store manager, Mr Moore, and shown a willingness to be flexible by offering to work on another day over the Christmas period.

On 16 December 2010, Ms Bennett told Mrs Stott that her alternative suggested dates were not acceptable and she would face “disciplinary action” for unauthorised absence if she did not come to work on Christmas Eve.

Mrs Stott made the decision not to come to work on Christmas Eve, but did work on the other required days, 27 and 28 December. On 28 December, Mrs Stott was invited to attend a disciplinary hearing on 4 January 2011, at which she was summarily dismissed. Ms Bennett, who chaired the hearing, took the view that the claimant had wilfully committed gross misconduct by “simply not attending work because she wanted to go to a party instead”. Mrs Stott’s appeal, heard by the manager of another Next store, Mr Orme, was unsuccessful.

Mrs Stott claimed that her dismissal was unfair because:

  • she did not realise that she was committing such a serious offence and was not warned by the employer that her failure to work on Christmas Eve was likely to result in her dismissal;
  • another employee, Ms Dawson, who had also refused to work on Christmas Eve was treated differently because she had been given a much more explicit warning of the possible consequences and was given a final written warning when she did not come to work; and
  • given the claimant’s previous good record and long service, dismissal was too harsh a sanction.


The employer’s main argument was that Mrs Stott, who was a long-serving employee who had signed the staff handbook, which gave “unauthorised absence” as an example of gross misconduct, did know, or ought to have known, that her non-attendance was likely to result in dismissal.

The employment tribunal held that the employer had made presumptions about what Mrs Stott did know, or ought to have known, about the rules on attending work on Christmas Eve. She simply did not know, and was not warned that, dismissal was a possible, and as it transpired highly probable, outcome of her conduct. The managers who had conversations with Mrs Stott on 9 and 16 December did not unambiguously tell her that she would be at serious risk of dismissal if she did not come to work on Christmas Eve.

The tribunal rejected the employer’s argument that Mrs Stott’s long service meant that she should have known about the strictness of the requirement to work on Christmas Eve. She worked only eight contractual hours per week and was not in a management or supervisory role. In addition, the sanction of dismissal for non-attendance was rare at Next. In fact, the company had only started opening its sales on Boxing Day from 2009, making the requirement for extra Christmas Eve staff to get the store ready for the sales a recent development.

The employment tribunal also accepted that Ms Dawson had been treated differently in similar circumstances. She had been given fuller guidance on the possible consequences and, when she did not come to work, there had been a “full and frank discussion” over the reasons for her non-attendance on Christmas Eve.

The tribunal was aware that Christmas is a very important period for the company, but it did not see this as a case of business necessity. The company could have managed, and indeed did manage, without the claimant on that day. If the employer had wanted to send a clear message to staff about the need to work during this important period, a more proportionate way of doing this would have been to give Mrs Stott a final written warning, especially given her previous good record.

While the employment tribunal found that Mrs Stott’s dismissal was unfair, it did reduce her compensation by 30% because she had been partly at fault for simply deciding not to come to work on Christmas Eve.”

Stott v Next Retail Ltd ET/2100960/11

Here are a few practical tips

Employers that know that they are going to need employees at specific times of the year should, for the avoidance of doubt, make provision for this in their contracts of employment and communicate this clearly to everyone in advance of the period of required working.

Where an employee indicates in advance that he or she may take unauthorised absence during this period, it is vital that the employer warns him or her of the possible consequences.

However, employers should take a sensible view of unauthorised absence. If an employee with a previous flawless record is dismissed for taking a single day’s unauthorised leave, the employer risks a finding of unfair dismissal.

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