Veitch Penny LLP - Exeter | Crediton, Devon

Case

Truelove v Safeway Stores Plc
Employment Appeal Tribunal (1st November 2004)

Issues

(1)Section 57A Employment Rights Act 1996
(2)Time off for Dependants
(3)Reason for requiring time off work

Facts

Section 57A of the Employment Rights Act 1996 (“the Act”) gives employees the right to take a reasonable amount of time off in certain circumstances in order to deal with emergencies involving a dependent. For example, this right could be used to provide assistance if a dependent falls ill or is injured, or to deal with an unexpected disruption to a dependent’s care.

This right to time off only applies if the employee tells the employer

a)the reason for their absence as soon as reasonably practicable and;
b)how long they expect to be absent (unless they return to work before they were able to notify their employer of the reason for their absence).

It is important to note that this right is limited to the reasonable amount of time required to deal with the immediate crisis.

These criteria were put in place in order to give an employer some information to judge whether or not they were faced with a request for leave engaging the right to time off under section 57A. This has inevitably led to debate as to how much information an employee must provide and what form it must take.

In this case, Mr Truelove had requested a date off work at short notice because there was no one to look after his daughter the following day. He had been aware that could be a potential problem with care a fortnight earlier and had tried to book the day off as annual leave but this had been refused. He had then made alternative child care arrangements but they had fallen through at the last minute. Importantly, he had not mentioned this fact to his Manager.

As a result of taking the leave, Mr Truelove was disciplined for taking unauthorised leave and lost his entitlement to a bonus of approximately £250. He bought a claim in the Employment Tribunal under Section 57A of the Act on the basis that he had been unreasonably refused time off for dependant care leave.

At first instance the Employment Tribunal had found that whilst Mr Truelove’s request fell within Section 57A of the Act, he had not provided sufficient information to determine whether the statutory right to time off was engaged. He appealed the decision arguing that the Tribunal had been too restrictive in its construction of the word “reason” and had required too high a standard for employees to reach. In his view, Safeway had sufficient information to deal with his request, in view of the circumstances.

Decision

The Employment Appeal Tribunal (EAT) found that the Tribunal’s interpretation of “reason” was incorrect. The Act was aimed at parents facing sudden and difficult situations in respect of a dependent, in this case, a child. They could not be expected to communicate in the specific language of the statute.

All that was required from the employee was communication from which the employer could understand that something had arisen which would make a staple arrangement affecting the dependent to become unstable, making it necessary for the employee to leave work urgently.

The reasonability of such a request was to be examined in accordance with the guidance in the case of Qua –v- John Ford Morrison Solicitors (2003). The EAT was of the view that in this particular case, Safeway had been in receipt of sufficient information to determine whether the statutory right was engaged and accordingly the Tribunal’s finding as to unreasonableness was set aside.

Comments

This case highlights the need for employers to be amenable to requests for leave to care for a dependant. It is important to note that employers are not entitled to demand detailed explanations of a reason why employee cannot attend work. Employers should try to be flexible when dealing with these issues and should not demand too much formality with regard to information. The onus is on employers to collate all the information being given to various members of management. Mr Truelove had given different bits of information to a number of managers. The EAT held that this was adequate as the information held by the company as a whole was sufficient to establish the right.