In Ellis v Ratcliff Palfinger Ltd (UKEAT/0438/13), the EAT dismissed an employee's appeal after the tribunal had found that he was fairly dismissed for failing to make reasonable efforts to inform his employer that he would be absent from work, due to his partner giving birth.

Background

Under section 57A of the Employment Rights Act 1996, an employee is entitled to take a reasonable amount of unpaid time off to take necessary action to deal with various situations affecting their dependants, such as where a dependant is ill or is giving birth. The right only applies if the employee tells his employer the reason for his absence as soon as reasonably practicable.  The dismissal of an employee for exercising this right is automatically unfair.

Facts

Mr Ellis had a history of absence, which resulted in him receiving a final written warning in November 2011 that a future failure to work his contractual hours could lead to his dismissal.  The warning was to stay on his file for 12 months.

On Monday 6 February 2012 Mr Ellis accompanied his heavily pregnant partner into hospital on several occasions because there were concerns about her health.  Mr Ellis did not contact his employer, Ratcliff Palfinger Ltd (Ratcliff), to explain the situation although Mr Ellis' father telephoned Ratcliff on his behalf in the afternoon.

Mr Ellis' partner gave birth on Tuesday 7 February 2012 and Mr Ellis did not inform Ratcliff that he would not be attending work either on that day or the next day.

On Wednesday 8 February 2012, Mr Ellis received a text telling him to contact Ratcliff urgently.  When he did so, he was reprimanded for not making contact and not coming into work.  That evening, Mr Ellis left an answerphone message for Ratcliff stating that he would not be at work the following day.

A disciplinary hearing was held on 15 February 2012, at which Mr Ellis said that his mobile phone had run out of battery and he had called his father from a hospital payphone to ask him to call Ratcliff, because he could not remember Ratcliff's phone number. Mr Ellis was dismissed for failing to make reasonable efforts to inform Ratcliff that he would not be attending work during the week of 6 February 2012, having regard to the live warning on his file.  He was given pay in lieu of notice.  He appealed but his appeal was dismissed.  Mr Ellis then brought a tribunal claim, alleging that he had been automatically unfairly dismissed for taking time off work because his dependant was giving birth.

Employment tribunal decision

The employment judge dismissed Mr Ellis' claim because the right to time off only applies if the employee tells his employer the reason for his absence as soon as it is reasonably practicable to do so.  The judge found that Mr Ellis could have recharged his mobile phone and found time to call Ratcliff, either from his mobile or the hospital payphone or he could have borrowed a phone.  Mr Ellis appealed to the EAT, arguing that the employment judge had based his decision on irrelevant factors.

EAT decision

The EAT found that the employment judge had correctly analysed the position.  The call from Mr Ellis' father came on the day when Mr Ellis' partner had gone into hospital due to health concerns but she did not give birth until the following day.  Mr Ellis did not attempt to call his employer to explain the reason for his absence on the Tuesday or Wednesday, as he did not call until Wednesday evening.

The EAT did not agree with Mr Ellis' submission that he had told Ratcliff the reason for his absence as soon as reasonably practicable.  The EAT found that the employment judge had correctly had in mind the test of reasonable practicability when reaching his decision.  The appeal was therefore dismissed.

Comment

To some, this may seem like a harsh decision where a new father is busy with the arrival of his baby and omits to keep his employer informed.  However, the facts of this case are important as there was clearly a history of absence on the part of Mr Ellis, in addition to his failure to meet the statutory requirements of section 57A of the Employment Rights Act 1996.

This case highlights the limits of the protection available to employees dismissed in connection with the right to take time off for dependants.  It also shows that in these circumstances, the employee must consider various ways of contacting his employer and must keep his employer informed.

However, employers should take care not to assume that they can dismiss an employee who fails to meet the requirements of the statutory provisions when taking time off for dependants.  An employee can bring an unfair dismissal claim if he has two years' service and the tribunal will consider whether the dismissal was reasonable in all the circumstances.  In this case, the live warning meant that the dismissal was within the band of reasonable responses.