Importance of remaining in touch with employer
There are relatively few cases resulting from breach of the statutory right to take time off for dependants under section 57 Employment Rights Act 1996 (ERA). Because of this, the recent decision of the EAT in Ellis v Ratcliff Palfinger Limited is worth noting. In this case, the EAT upheld the Employment Tribunal’s decision that Mr Ellis had failed to inform his employer of the reason for his absence as soon as reasonably practicable and he had not been automatically unfairly dismissed for taking time off to deal with an emergency involving his dependant.
Mr Ellis had a poor attendance record and in November 2011 he was given a final written warning which was to remain on file for 12 months.
His contract of employment provided that if employees were absent from work due to an illness or injury they had to telephone their line manager no later than 30 minutes after they were supposed to start work. If the line manager was unavailable, employees had to leave a message on the company’s absence line and if there was ongoing absence, employees had to maintain contact at “appropriate intervals” and at least once a week.
On Sunday 5 February 2012 and Monday 6 February, Mr Ellis took his heavily pregnant partner to hospital several times because she was unwell. He did not contact the company Monday morning to explain the situation but his father called them Monday afternoon. On Tuesday, Mr Ellis did not go to work but accompanied his partner to hospital where she was to have the baby. He did not contact the company. On Wednesday, the company sent Mr Ellis a text telling him to contact the office as soon as possible. When he did so, Mr Ellis was criticised for not making contact and for not coming to work. That evening he left a message on the company’s answerphone stating that he would not be in work the following day. He failed to attend work Friday too.
At the subsequent disciplinary hearing on 15 February, Mr Ellis said that he was unable to contact the company because the battery on his mobile phone had run out on Tuesday 7 February and that he had called his father from the hospital payphone and asked him to phone the company because he had forgotten the number. Mr Ellis was dismissed for failing to make reasonable efforts to inform the company that he would not be attending work during the week 6 -10 February.
Mr Ellis then brought an Employment Tribunal claim on the basis that he had been automatically unfairly dismissed for taking time off for dependants under section 57 ERA. The company said that the principal reason for the dismissal was misconduct and took into account the live warning on the file.
Section 57 ERA provides for employees to take a reasonable amount of unpaid time off work in certain circumstances and applies from the first day of employment, no qualifying period of service is needed.
When can the employee take time off?
- When a dependant falls ill, or has been injured or assaulted.
- To make longer term care arrangements for a dependant who is ill or injured.
- To deal with an unexpected incident involving the employee’s child during school hours.
- To deal with an unexpected disruption or breakdown of arrangements for care of a dependant.
- To deal with the death of a dependant.
- When a dependant is having a baby.
A dependant is the spouse, partner, civil partner, child or parent of the employee. A dependent is also someone who lives in the same household as the employee, for example, an elderly relative (but not a tenant). The employee is entitled to take a reasonable amount of time off and the legislation does not specify what this might be but for most cases, one or two days should be sufficient as the right is intended to cover unexpected or sudden emergencies and to make any necessary longer term arrangements.
The Employment Tribunal and EAT decisions
Mr Ellis’s claim was unsuccessful. The Employment Tribunal concluded that he had failed to inform the company the reason for his absence as soon as reasonably practicable. He could have easily re-charged his phone to make a call to the company and even once his partner had gone into labour, he could have made a quick call. Alternatively, he could have borrowed a phone to make the call or used the hospital’s payphone to make the call when he was at the hospital Tuesday and Wednesday.
The EAT upheld the Employment Tribunal’s decision. What was “reasonably practicable” depended on the specific facts of each case. Mr Ellis’s partner was not admitted to hospital for the birth until Tuesday 7 February and Mr Ellis had ample opportunity whilst at the hospital to charge his mobile phone or make alternative arrangements to contact the company.
Many organisations already have in place a Time off for Dependants’ policy and this should clearly set out the requirements in relation to notification. Specifically, that employees must tell their employer the reason for their absence as soon as it is reasonably practicable to do so and how long they expect to be away from work. If this is not reasonably practicable, employees must inform their employer the reason for their absence on their return to work.
This decision illustrates the importance of employees contacting their employer as soon as reasonably practicable and complying with the notification procedures even with the imminent arrival of a new baby. Keeping important contact details to hand would also be helpful. Interestingly, Mr Ellis had not made any application before the birth for paternity leave which could have started on any day of the week following the child’s birth. Had he done so, he would have been entitled under the company’s scheme to two weeks’ paternity leave on full pay to be taken as one or two consecutive weeks within 56 days of the birth.