Veitch Penny LLP - Exeter | Crediton, Devon

Case

Forster v Cartwright Black Solicitors
Employment Appeal Tribunal (25 June 2004)

Issues

(1) Parental leave
(2) Bereavement
(3) Employment Rights Act 1996

Facts

Mrs Forster commenced employment with the Respondents on 5th August 2002. She had taken some sick leave in that year, and twelve days’ paid bereavement leave in October following the death of her father. Then, in the following May, Mrs Forster’s mother died. She had five days bereavement leave, immediately followed by two weeks sick leave which was cerdismissal tified by her doctor as a “bereavement reaction”. A further sick note was submitted for a further two weeks off sick, from 10 June 2003. Upon receipt of that note, her employers invited her to a meeting where she was dismissed. The letter of dated 16 June 2003 stated that the reasons arose from her latest period of absence and her absence record generally.

As Mrs Forster did not have the continuous employment necessary to make a claim of unfair dismissal, she alleged that she had been unfairly dismissed for exercising her statutory right to take time off “to take action…. in consequence of the death of a dependent” under s.57A(1) of the Employment Rights Act 1996. For claims of this kind, one years’ continuous employment is not required.

Section 57A of the Employment Rights Act 1996 provides that “(1) An employee is entitled to be permitted by his employer to take a reasonable amount of time off during the employee’s working hours in order to take action which is necessary… (c) in consequence of the death of a dependent…”

The employment tribunal found the period of absence in question did not come within s.57A and dismissed the complaint. Mrs Forster appealed the decision.

The Employment Appeal Tribunal (EAT) had to consider whether the time taken off by the Applicant fell within the scope of section 57A(1)(c).

Decision

The appeal would be dismissed.

The EAT confirmed that sickness absence caused by grief is not time off to take action in consequence of the death of a dependent within s.57(1). It was acknowledged that the right was not restricted to the making of actual funeral arrangements. The trigger for the entitlement was that the time off was taken in order to take action that was necessary in consequence of the death. In this case, Mrs Forster’s submissions took inadequate account of that trigger.

Consequently, as the death did not fall within s.57A, Mrs Forster failed in her unfair dismissal claim.

Comments

This case confirms that this right was not intended to introduce the right to compassionate leave as a result of bereavement. It was only intended to matters such as time off to make funeral arrangements, registering the death and applying for probate.