Veitch Penny LLP - Exeter | Crediton, Devon

Case

Qua v John Ford Morrison Solicitors - Employment Appeal Tribunal - (14 January 2003)

Issues

(1) Unfair dismissal
(2) Parental leave
(3) Assertion of statutory right

Facts

The Applicant was employed as a legal secretary from January 2000. She was dismissed on 27 October 2000 from her employment due to her high level of absences. Many of her absences were, her employer claimed, unauthorised. The Applicant stated that the majority of her absences were due to the ongoing illness of her son. She further submitted that her absences were reasonable and notified to her employer.

The Applicant made a complaint to the Tribunal alleging sex discrimination and automatic unfair dismissal as she had been unfairly dismissed for exercising her right under section 57A of the Employment Rights Act 1996 (“ERA 1996”). This provision gives employees the statutory right to take a reasonable amount of time off work in order to deal with a variety of unexpected or sudden events affecting their dependents and in order to make any “necessary” longer-term arrangements for their care. The legislation goes on to state that the employee must inform the employer of the reason for the absence as soon as reasonably practical. If the employee can contact the employer before returning to work, the employer should be given an estimate of how long the absence will last.

The Tribunal heard that the Applicant had taken time off work due to her son’s illness on a total of seventeen days. She did not attend work at all on fourteen of those days. The Tribunal accepted that on each occasion her son had indeed been too unwell to go to school.

The Tribunal dismissed the Applicant’s complaint. She had failed, “on a number of occasions” to inform her employer of the reason for her absence as soon as reasonably practical and to state for how long she expected to be away.

The Tribunal considered whether the Applicant had taken a “reasonable” amount of time off to take “necessary” action. It noted that the legislation referred to a dependent that “falls ill” as opposed to “is ill”. It therefore followed that the Applicant was not entitled to take time off to personally care for the dependent (as this was not a “necessary” task as per the legislation), but was entitled to take time off to arrange for the dependent to be cared for by someone else.

Furthermore, the amount of time taken was not “reasonable”, taking into account the small size of the firm and the effect that her absences had upon it. It stated that the Applicant could have reasonably avoided some of the absences if she had made alternative arrangements for her son’s care, instead of caring for him herself.

The Applicant appealed the Tribunal’s decision.

Decision

The Appeal Tribunal allowed the appeal and remitted the case for re-hearing.

It found that the right provided by section 57A of the ERA 1996 allowed employees a “reasonable” time off during work hours in order to take the “necessary” action to deal with a variety of unexpected or sudden events affecting their dependents, and in order to arrange any necessary longer term care required. To determine whether action was “necessary”, matters to be considered include the nature of the incident, the closeness of the relationship between the employee and dependent and the extent to which anyone else was available to help. When considering whether the time taken is a “reasonable” amount of time off, the individual’s circumstances should be taken into account. The inconvenience and disruption to the employer (a matter considered by the Tribunal) was irrelevant.
In this case, the Tribunal had failed to state the extent to which, if at all, the Applicant had complied with the requirements of section 57A(2). Furthermore, it had wrongly decided that the Applicant should have reported in to work on each of the days taken off work.

Comments

The Appeal Tribunal emphasised that an employee was not entitled to take unlimited amounts of time off even if the relevant notice requirements were complied with, and a reasonable amount of time was taken off. The entitlement was to deal with an unforeseen incident. Once it was known that a child was suffering from an underlying medical condition with the potential for regular relapses, the situation no longer falls within section 57A. The Appeal Tribunal also observed that leave to provide longer-term care for a child would be covered by the employee’s parental leave entitlement.


By Peter Taylor, Managing Partner. Tel: 01392 278381