Employment Law: Time Off for Dependants
In a recent case, Ellis v
Ratcliff Palfinger Ltd the Employment Appeal Tribunal considered
whether an employee, Mr Ellis had been automatically unfairly
dismissed for taking time off to deal with emergencies involving
Section 57A Employment Rights
Act ("ERA") 1996 provides that employees are entitled to take a
reasonable amount of unpaid time off work to take necessary action
to deal with certain unexpected or emergency situations affecting
their dependants, for example, if a dependant falls ill or gives
There is no qualifying period
for this entitlement.
In an earlier case of Qua v
John Morrison Solicitors, again decided by the EAT, the Court
suggested that in deciding what amounted to a reasonable time off,
it was not possible to specify a maximum reasonable period of time
in any particular circumstance, however, in most cases it is likely
to be a couple of hours or a a day or two. What is reasonable
will depend on, the nature of the incident and the employee's
individual circumstances. What is not of relevance and should
not be taken into account is the disruption or inconvenience caused
to the employer's business.
The right to time off,
however, will only apply where the employee tells the
The reason for their absence as soon as it is reasonably
practicable to do so.
How long they expect to be away from work (unless it is not
reasonably practicable for the employee to tell the employer the
reason for their absence until they return to work).
The ERA further provides that
where an employee takes time off in accordance with this right and
where this is the reason for the employee's dismissal, the employee
will have been automatically unfairly dismissed.
There are occasions when an
employer suspects an employee of abusing the right to take time off
to care for dependants and this should be dealt with as a
disciplinary matter, however, caution will be required.
In the case decided by the EAT
Mr Ellis was employed under a contract of employment that provided
If absent due to illness or injury he had to notify his line
manager by no later than 30 minutes after his start time and where
the manager was not available, leave a message on the Company's
That he should keep in regular contact, as appropriate given the
nature of his illness or the condition that prevented him from
Mr Ellis was subject to a
final written warning issued on 25 November 2011 for attendance
issues. The warning was for a duration of 12 months and
provided that any future failure to work could result in his
Mr Ellis had a heavily
pregnant partner. On the 5 February and 6 February 2012, Mr
Ellis took his partner to hospital with concerns regarding her
health but failed to contact his employer placing reliance upon his
father who contacted the company on the afternoon of Monday 6
February to explain the situation.
On 7 February Mr Ellis
accompanied his wife to hospital and she was admitted. Mr
Ellis did not attend his workplace and nor did he contact
On 8 February Mr Ellis
received a text asking him to contact the office urgently which he
did. That same evening he left a message on the answerphone
saying that he would not be in the following day.
Mr Ellis was invited to a
disciplinary hearing on 15 February 2012. Mr Ellis placed
reliance on a number of arguments, that his mobile phone had run
out and that he had called his father from the hospital pay phone
and asked him to call his employers because he could not remember
the employer's number. Mr Ellis was dismissed on 16 February
The employer found that he had
failed to make reasonable efforts to inform them that he would not
be attending at work during the week commencing 6 August 2012 and
in view of the live final warning on his disciplinary record he was
dismissed. The internal appeal against the decision to
dismiss was also dismissed.
Mr Ellis brought a claim for
automatic unfair dismissal under Section 57A ERA 1996.
The claim was dismissed in the
Employment Tribunal. The Judge held that Section 57A did not
apply because Mr Ellis had not told his employer the reasons for
his absence as soon as practicable. The Judge pointed to the
fact that Mr Ellis could have recharged his phone in time to call
his employer in the morning, he could have borrowed a phone or used
the available pay phone.
Mr Ellis appealed arguing that
the decision of the Employment Tribunal was based on irrelevant
factors, relating to his actions in the days after Monday 6
The Employment Appeal Tribunal
disagreed and said the Employment Tribunal Judge had correctly
analysed the sequence of events beginning on Monday 6 February 2012
when Mr Ellis's father had telephoned his employer. The EAT
rejected the explanation that Mr Ellis's telephone had run out of
battery and that he could not contact his employer until the
In essence, the case points to
that need for employers and employees alike to understand the
legislation and how it works. A policy setting out the
notification requirements that an employee must follow is a good
Posted on: 06/10/2014
This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.
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