Cortest Limited v O’Toole: EAT 7 Nov 2007

The tribunal was asked, inter alia, whether the tribunal had erred in law in determining that a father’s request for ‘a month or two’ of unpaid leave to look after his children, when his partner had unexpectedly left home, was a request to take off a reasonable amount of time because section 57A is intended to deal with short-term emergencies.
Held: Nelson J said: ‘We are satisfied that Mr Howarth’s submissions are correct on the law and that the Employment Tribunal fell into error in both their interpretation and application of s.57A(1)(d). The purpose of the legislation is to cover emergencies and enable other care arrangements to be put into place. These cases are all fact sensitive but a period as long as one month or even longer for care by a parent would rarely, almost never, fall within s.57A and cannot on the facts before the Tribunal have done so here. If longer leave is required than a short period of unpaid parental leave is available but that was not so here because it is not available for emergency situations and a request has to be put in writing. We are satisfied that one month especially where there is no evidence that any other arrangements were sought, for example, neighbours or other relatives or any other kind cannot be reasonable on the facts as found by the Employment Tribunal. They were in error in law, as we have said, in interpreting and applying s.57A. We have no doubt given the facts before them that they felt a strong sympathy towards Mr O’Toole and Ms Hyde for the predicament for which they found themselves but that is not a reason for extending what is intended to be the time for putting in place other care which the section under the Act provides for. As there was no absence under s.57A the dismissal cannot have been automatically unfair under the Maternity and Parental Leave Regulations 1999. We substitute for those of the Tribunal our findings that the request did not fall within s.57A of the Act.
As to ground 3 we are also clear that s.57A does not permit a parent to become the child minder for a period as long as occurred here, just short of one month, when the maximum period thought to be possible was two months but it is, as s.57A intended, to give the parent the breathing space to enable a replacement carer to be found. Here the Respondent made it clear that he was to be the carer and Ms Hyde has said that there was no other option open to them. Paragraphs 15 and 16 of the case of Qua are again relevant as indeed is the guidance and we are satisfied that s.57A also does not apply here for this reason.’

Judges:

Nelson J

Citations:

EAT/0470/07

Statutes:

Employment Rights Act 1996 57A

Citing:

CitedQua v John Ford Morrison (Solicitors) EAT 14-Jan-2003
The claimant appealed the refusal of her claim for a finding that her dismissal was automatically unfair. She had been employed for less than a year, and had taken several absences to care for her child. She claimed protection saying that her . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 05 May 2022; Ref: scu.276693