Dependant leave – what should the employee be doing?

The case of Ellis -v- Ratcliff Palfinger Ltd has provided us with recent guidance on what can be quite a difficult issue for employers to manage.  The employee concerned was on a final warning in relation to poor attendance.  His partner, who was heavily pregnant in circumstances where there were concerns over her health, was taken by the employee to hospital several times on a day when he was supposed to be in work.  He didn’t contact the company to explain the situation but did get his father to telephone in in the afternoon.  His contract of employment had the common clause that he was supposed to notify his line manager no later than 30 minutes after he should have started work of any absence.

On the next day the employee accompanied his partner to hospital where she had the baby.  Again, he did not telephone his employer about why he wasn’t attending work.  On the third day he received a message from a manager from the company asking him to contact them urgently.  When he did so he was severely criticised for failing to make proper contact and not coming into work.  He left a further message on the answering machine stating that he would not be in work on the fourth day.

As the disciplinary situation progressed, the employee claimed that his mobile phone battery had run out and that he had called his father using the hospital pay phone asking him to phone the company because he couldn’t remember their telephone number.  The company dismissed the employee, albeit with payment in lieu of notice.   In the proceedings that ensued, the employee argued he had been automatically unfairly dismissed for taking time off under Section 57A of the Employment Rights Act which governs the right to take unpaid time off work to take necessary action to deal with particular situations affecting dependants.

You will recall from the previous case of Qua -v- John Morrison Solicitors 2003 that the Employment Appeal Tribunal had already indicated that the right to time off only applies if the employee has told their employer the reason for their absence as soon as it is reasonably practicable to do so and how long they expect to be away from work.

The Employment Judge found in the company’s favour and that the employee had not told them the reason for his absence as soon as practicable.  The Judge’s view was that even if his phone battery was run down he could have recharged it in time to make appropriate phone calls early the next morning.  Once his partner was in hospital he could have gone into the corridor and quickly called his employer, which he didn’t do.  Equally, he could have borrowed a phone and in any event he could have used the pay phone.

The employee appealed to the Employment Appeal Tribunal but the Employment Appeal Tribunal dismissed this.  They went on to say that what is reasonably practicable has to be determined by reference to the particular facts of the case.  They explained that what is reasonably practicable isn’t confined to what is reasonably capable, physically, of being done.  In this case, on the first day when the employee was taking his partner to hospital because of health concerns, he could quite easily have made contact with his employer.

What is reasonably practicable also takes into account the employee’s mental state.  In this particular case there was no medical evidence before the Judge suggesting any problems in this regard.

All too often we feel that the case law goes in the employee’s favour.  Whilst I am sure we can all have sympathy with the employee here whose mind was quite properly on what was going on with his unborn child, it highlights the need for employees to make sure that they do contact their employer as soon as reasonably practicable for them to do so.  It would be useful to make sure that employees have got relevant contact numbers – your Dependant Leave Policy might wish to point out that in an emergency situation the employee still has the obligation to make contact and that they need to think of and use any means at their disposal to do so.