Ellis v Ratcliff Palfinger Ltd1

In Ellis v Ratcliff Palfinger Ltd, the Employment Appeal Tribunal considered whether  an employee had been automatically unfairly dismissed for taking time off to deal with emergencies involving their dependants.

Facts of the case

Mr Ellis was employed by Ratcliff Palfinger Ltd (Ratcliff). His contract provided that:

  • If absent due to illness or injury he had to notify his line manager by no later than 30 minutes after he should have started work. If the manager was not available, he needed to leave a message on the company’s absence line
  • He should then keep in regular contact, as appropriate given the nature of the illness or condition that prevented him from working. In any event, there should be contact at least once a week

As a result of attendance issues, Mr Ellis was given a final written warning on 25 November 2011, which was to remain on his file for 12 months. On Sunday 5 February 2012, there were concerns about the health of Mr Ellis’ heavily pregnant partner and on Monday 6 February he took her to hospital several times. However, he failed to contact Ratcliff to explain why he was not at work. Instead, Mr Ellis’ father telephoned Ratcliff on Monday afternoon.

For the rest of that week Mr Ellis did not attend work and did not keep in contact with his employer to inform them of his situation. Mr Ellis was called to a disciplinary hearing on 15 February 2012. He claimed that the battery of his mobile phone had run out and he could not remember his employer’s phone number. Mr Ellis was dismissed by a letter dated  16 February 2012 and given pay in lieu of notice. Mr Ellis brought tribunal proceedings arguing that he had been automatically unfairly dismissed for taking time off under section 57A of the Employment Rights Act 1996.

An employment judge dismissed the claim, holding that section 57A did not apply because Mr Ellis had not told Ratcliff the reason for his absence as soon as reasonably practicable. The judge found that, even if his phone battery had run down, Mr Ellis could have recharged it in time to make appropriate phone calls early in the morning to his employers. Once his partner had gone into labour he could have gone into the corridor and made a quick call to his employer, which he failed to do. He could have borrowed a phone and, in any event, there was a payphone available that he could have used. On appeal the EAT upheld the employment judge’s decision that Mr Ellis had not been automatically unfairly dismissed for exercising the right to take time off for dependants.

Points to note

The facts of this case highlight the need for employees to ensure that they make contact with their employer to tell them why they are absent as soon as reasonably practicable for them to do so. It is clearly sensible for employees to ensure that they have relevant contact numbers, especially if they have dependants and anticipate that they may be called on in an emergency.