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In Ellis v Ratcliff Palfinger Ltd the Employment Appeal Tribunal (EAT) upheld the decision that an employee was not automatically unfairly dismissed for exercising the right to take time off for dependants. The employee, who had taken time off work to accompany his pregnant partner to hospital, failed to notify his employer of the reason for his absence as soon as was reasonably practicable.

Under s. 57A of the Employment Rights Act 1996 employees are entitled to take a reasonable amount of time off work unpaid to deal with certain situations affecting their dependants including illness or child birth. It was suggested in Qua v John Morrison Solicitors that although no maximum amount of time is specified, it is likely that no more than a few hours or few days at most will qualify, though this will depend on the circumstances of each case. Any disruption to the employer’s business should not be taken into consideration.

The right only applies where the employee informs the employer of the reason for his absence as soon as is reasonably practicable. If an employee is dismissed as a result of their exercising of this right, the employee will have been automatically unfairly dismissed.

In Ellis v Ratcliff Palfinger Ltd the employee, Mr Ellis, took time off work on 6th February to accompany his partner to hospital. However, he failed to contact his employer Ratcliff leaving his father to contact Ratcliff that afternoon. On 7th February Mr Ellis accompanied his partner to the hospital to give birth and failed to contact Ratcliff. On 8th February Ratcliff requested that Mr Ellis contact the office immediately. That evening Mr Ellis left a message for Ratcliff stating that he would not be in work the following day.

Mr Ellis was called to a disciplinary hearing where he claimed that he could not contact Ratcliff as his mobile telephone had run out of battery and he could not remember the number. Mr Ellis was dismissed on the basis that he had failed to make reasonable efforts to inform his employer of the reason for his absence as soon as was reasonably practicable.

Mr Ellis brought a claim for unfair dismissal on the basis that he had been automatically unfairly dismissed. The judge at first instance held that that s. 57A did not apply as Mr Ellis had failed to inform Ratcliff of the reason for his absence as soon as was reasonably practicable. The judge commented that Mr Ellis could have recharged his phone in time to make a phone call to his employers early that morning and should have made the call when his partner went into labour. He also had the option to use the hospital’s payphone or could have borrowed a phone. Mr Ellis appealed; the appeal was dismissed by the EAT.

Top Tip

Employees who take time off work for dependants must actively find a means of informing their employer of the reason for their absence as soon as is reasonably practicable. It is sensible for employees to have the relevant contact numbers stored in a fully charged mobile phone at all times, particularly if they have dependants and anticipate that they may be called on in an emergency.

September, 2014