The Employment Appeal Tribunal (EAT) has recently found that an employee was not automatically unfairly dismissed when he took time off to care for his pregnant partner.
We look at the reasons why and what this means for employers.
Although the employee had the right to take time off to care for a dependant, the EAT's decision arose from the fact the employee had failed to tell his employer the reason for his absence as soon as it was reasonably practicable to do so.
So what is the right to time off and when is it reasonably practicable for an employee to inform their employer of their absence?
When can an employee have time off to care for a dependant?
Employees are entitled to take a reasonable amount of unpaid time off work in order to deal with certain situations concerning their dependants. This includes, amongst other things, time off to provide assistance if a dependant falls ill or gives birth, or in consequence of the death of a dependant. The right only extends to action which is considered necessary.
A dependant in this context means the employee's spouse, civil partner, child or parent or a person who lives in the same household (this does not include grandparents).
In order to exercise this right, an employee has an obligation to tell their employer:
- as soon as reasonably practicable, the reason for their absence
- how long they expect to be away from work.
What is considered reasonable and necessary by an employee and an employer (in response to the employee's actions) will very much depend on the circumstances of each individual case.
Ellis v Ratcliff Palfinger Ltd
The facts of this case were key in determining whether or not the employer had acted unfairly in dismissing Mr Ellis.
Mr Ellis' contract of employment stated that when he was absent he should notify his line manager no later than 30 minutes after he was due to start work. If his manager was not available then he should leave a message on the company's absence telephone line. The contract also stated that he should keep in regular contact during his absence.
Prior to Mr Ellis taking time off in relation to his pregnant partner, he had received a final written warning lasting 12 months as a result of previous attendance issues.
When Mr Ellis failed to turn up for work, because of his pregnant partner's ill health, he failed to contact Ratcliff and explain his absence. However, Mr Ellis's father did telephone Ratcliff later that afternoon.
The following day, Mr Ellis accompanied his pregnant partner to hospital to have the baby. Again, Mr Ellis failed to attend work or inform anybody at Ratcliff.
Mr Ellis then received a text message telling him to contact Ratcliff urgently. Mr Ellis did so and was severely criticised for failing to make contact and not coming into work. Mr Ellis then left an answerphone message later that day stating that he would not be in work the following day.
As a result, Mr Ellis was called to a disciplinary hearing. He claimed that he was unable to call and inform Ratcliff of his absence due to his mobile phone running out of battery and not being able to remember Ratcliff's telephone number. Ratcliff did not consider Mr Ellis efforts to inform them as reasonable and dismissed him, relying on his previous final written warning. His internal appeal was also dismissed.
Mr Ellis claimed this dismissal was automatically unfair under section 57A of the Employment Rights Act 1996.
The Employment Tribunal dismissed the claim and held that section 57A did not apply as Mr Ellis had not told Ratcliff the reason for his absence as soon as reasonably practicable.
Mr Ellis' appealed to EAT which was subsequently dismissed.
Learning points for employers
- it's important to consider the particular circumstances surrounding when it would be 'reasonably practicable' for employees to inform you of their absence in relation to time off for dependants
- you should make sure employees are aware of company procedure when reporting absence (including relevant contact details / telephone numbers) and give examples of what is considered reasonable
- application of the absence procedure should be clear and consistent for all employees and an up-to-date record of absence issues should be maintained
- employees should be made aware of the need to exhaust all possible methods when trying to contact you about their absence - or to make life easier, simply remember to charge their mobile phone!
For further advice on Employment Tribunals or any of the issues raised in this article, please contact our expert employment team on 03700 86 8802 or email: Kevin.McCavish@shoosmiths.co.uk
This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.