Time off for Dependants: Failure to Contact Employer as Soon as Reasonably Practicable Meant Dismissal Not Automatically Unfair
The dismissal of an employee who took time off work to take his wife to hospital was not automatically unfair as he had not contacted his employer to explain the reason for his absence as soon as reasonably practicable.
Under s57A Employment Rights Act 1996, an employee is entitled to take a reasonable amount of unpaid time off to take necessary action to deal with situations affecting their dependants. The right only applies if the employee tells their employer the reason for their absence as soon as reasonably practicable. The dismissal of an employee for exercising the right is automatically unfair.
In Ellis v Ratcliff Palfinger Ltd, E’s partner was heavily pregnant. There were concerns about her health and on Monday 6 February he took her to hospital several times. He did not contact his employer to explain his absence but instead his father telephoned his employer in the afternoon. The following day, E accompanied his partner to hospital where she was admitted to have the baby. He did not contact his employer at all.
On Wednesday 8 February 2012, E received a text from his employer telling him to contact the office urgently. When he contacted them he was criticised for failing to make contact and not coming to work. That evening he left a message on the answering machine saying he would not be in work the next day.
At a disciplinary hearing the following week, E claimed the battery on his mobile phone was dead and he had called his father from a hospital payphone and asked him to phone his employer as he did not have the number. The employer concluded that E had failed to make reasonable efforts to inform them that he would not be attending work during the week beginning 6 February. As he had a live final written warning from November 2011, it decided to dismiss him.
E claimed that he had been dismissed for taking time off for dependants and that his dismissal was therefore automatically unfair. The employment tribunal rejected his claim, finding that s57A did not apply as E had not told his employer of the reason for his absence as soon as reasonably practicable. Even if his phone battery had run out early on the Monday or the Tuesday, he could have recharged it in time to make appropriate phone calls to his employer early in the morning. Once his partner had gone into labour he could have gone into the corridor and made a quick call to his employer. He could also have borrowed a phone and in any event there was a payphone available that he could have used.
The employment tribunal concluded that E’s dismissal was not because he exercised the right to take time off for dependants but for misconduct and the dismissal was fair in the circumstances.
The Employment Appeal Tribunal rejected E’s appeal.
This case demonstrates the limits of the protection available to employees dismissed in connection with the right to take time off for dependants. Employees will only be protected and able to claim that their dismissal was automatically unfair where they comply with the statutory provisions in full, including the obligation to explain the reason for their absence as soon as reasonably practicable.
However, employers should not assume that this means that they are entitled to dismiss an employee who fails to comply with the statutory provisions when taking time off. An employee will still be able to claim ordinary (as opposed to automatic) unfair dismissal (if they have two years’ service), and the tribunal will then consider the reason for dismissal and whether the dismissal was fair in all the circumstances. In this case dismissal was within the band of reasonable responses as the employee had a live final written warning on file and a fair procedure had been followed . Other cases may not be as clear cut.
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