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Employment Law: Time Off for Dependants

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In a recent case, Ellis vRatcliff Palfinger Ltd the Employment Appeal Tribunal consideredwhether an employee, Mr Ellis had been automatically unfairlydismissed for taking time off to deal with emergencies involvingtheir dependants.

Section 57A Employment RightsAct ("ERA") 1996 provides that employees are entitled to take areasonable amount of unpaid time off work to take necessary actionto deal with certain unexpected or emergency situations affectingtheir dependants, for example, if a dependant falls ill or givesbirth.

There is no qualifying periodfor this entitlement.

In an earlier case of Qua vJohn Morrison Solicitors, again decided by the EAT, the Courtsuggested that in deciding what amounted to a reasonable time off,it was not possible to specify a maximum reasonable period of timein any particular circumstance, however, in most cases it is likelyto be a couple of hours or a a day or two. What is reasonablewill depend on, the nature of the incident and the employee'sindividual circumstances. What is not of relevance and shouldnot be taken into account is the disruption or inconvenience causedto the employer's business.

The right to time off,however, will only apply where the employee tells theemployer:

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

  2. How long they expect to be away from work (unless it is notreasonably practicable for the employee to tell the employer thereason for their absence until they return to work).

The ERA further provides thatwhere an employee takes time off in accordance with this right andwhere this is the reason for the employee's dismissal, the employeewill have been automatically unfairly dismissed.

There are occasions when anemployer suspects an employee of abusing the right to take time offto care for dependants and this should be dealt with as adisciplinary matter, however, caution will be required.

In the case decided by the EATMr Ellis was employed under a contract of employment that providedthat:

  1. If absent due to illness or injury he had to notify his linemanager by no later than 30 minutes after his start time and wherethe manager was not available, leave a message on the Company'sabsence line.

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

Mr Ellis was subject to afinal written warning issued on 25 November 2011 for attendanceissues. The warning was for a duration of 12 months andprovided that any future failure to work could result in hisdismissal.

Mr Ellis had a heavilypregnant partner. On the 5 February and 6 February 2012, MrEllis took his partner to hospital with concerns regarding herhealth but failed to contact his employer placing reliance upon hisfather who contacted the company on the afternoon of Monday 6February to explain the situation.

On 7 February Mr Ellisaccompanied his wife to hospital and she was admitted. MrEllis did not attend his workplace and nor did he contactthem.

On 8 February Mr Ellisreceived a text asking him to contact the office urgently which hedid. That same evening he left a message on the answerphonesaying that he would not be in the following day.

Mr Ellis was invited to adisciplinary hearing on 15 February 2012. Mr Ellis placedreliance on a number of arguments, that his mobile phone had runout and that he had called his father from the hospital pay phoneand asked him to call his employers because he could not rememberthe employer's number. Mr Ellis was dismissed on 16 February2012.

The employer found that he hadfailed to make reasonable efforts to inform them that he would notbe attending at work during the week commencing 6 August 2012 andin view of the live final warning on his disciplinary record he wasdismissed. The internal appeal against the decision todismiss was also dismissed.

Mr Ellis brought a claim forautomatic unfair dismissal under Section 57A ERA 1996.

The claim was dismissed in theEmployment Tribunal. The Judge held that Section 57A did notapply because Mr Ellis had not told his employer the reasons forhis absence as soon as practicable. The Judge pointed to thefact that Mr Ellis could have recharged his phone in time to callhis employer in the morning, he could have borrowed a phone or usedthe available pay phone.

Mr Ellis appealed arguing thatthe decision of the Employment Tribunal was based on irrelevantfactors, relating to his actions in the days after Monday 6February 2012.

The Employment Appeal Tribunaldisagreed and said the Employment Tribunal Judge had correctlyanalysed the sequence of events beginning on Monday 6 February 2012when Mr Ellis's father had telephoned his employer. The EATrejected the explanation that Mr Ellis's telephone had run out ofbattery and that he could not contact his employer until theWednesday.

In essence, the case points tothat need for employers and employees alike to understand thelegislation and how it works. A policy setting out thenotification requirements that an employee must follow is a goodstarting point.

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.

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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