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 their dependants.

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 birth.  

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 employer:

  1. The reason for their absence as soon as it is reasonably practicable to do so.

  2. 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 that:

  1. 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 absence line.

  2. That he should keep in regular contact, as appropriate given the nature of his illness or the condition that prevented him from working. 

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 dismissal. 

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 them. 

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 2012.

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 February 2012.

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 Wednesday. 

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 starting point.

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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