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 absences had been ‘dependants leave’.
Held: When considering such a claim, the tribunal should look at an ordered series of precise questions, namely how many absences and when, was an appropriate reason given, saying how long might be needed, and other factors. A failure to meet the section requirements would defeat any claim that a consequent dismissal was automatically unfair. In general, the right was for all employees and to take reasonable time off, but it was for time to make arrangements for care, not to provide the care themselves (at least in the first year of employment), and temporary assistance should be made available to an employee. Time could be taken to make longer term arrangements. The time was what was reasonably necessary in that employee’s individual circumstances. In this case however the triubunal had failed to distinguish between the various absences and teir purpose, and had therefore erred. The case was remitted for re-hearing.
Mrs Recorder Cox said: ‘By way of general observation, and having regard to the Directive and in particular the use of the words ‘force majeure’ when referring to time off from work during working hours, we agree with the Tribunal’s conclusions at paragraph 22 as to the nature of the absences contemplated in this section. The statutory right is, in our view, a right given to all employees to be permitted to take a reasonable amount of time off work during working hours in order to deal with a variety of unexpected or sudden events affecting their dependants, as defined, and in order to make any necessary longer-term arrangements for their care . . The right to take time off to ‘ . . provide’ assistance etc. at sub-section (1)(a) does not in our view enable employees to take off in order of themselves to provide care for a sick child, beyond the reasonable amount necessary to enable them to deal with the immediate crisis.’ Time off is to be permitted to enable an employee to make longer term arrangements for the care of a dependant, for example, by employing a temporary carer or making appropriate arrangement with friends or relatives: ‘Subsection (1)(d) would include, for example, time off to deal with problems caused by a child-minder failing to arrive or a nursery or playgroup closing unexpectedly.’ and: ‘The right is a right to a ‘reasonable’ amount of time off, in order to take action which is ‘necessary’. In determining whether action was necessary, factors to be taken into account will include, for example, the nature of the incident which has occurred, the closeness of the relationship between the employee and the particular dependant and the extent to which anyone else was available to help out . . We consider that, in determining what is a reasonable amount of time off work, an employer should always take account of the individual circumstances of the employee seeking to exercise the right. It may be that, in the vast majority of cases, no more than a few hours or, at most, one or possibly two days would be regarded as reasonable to deal with the particular problem which has arisen. Parliament chose not to limit the entitlement to a certain amount of time per year and/or per case, as they could have done pursuant to Clause 3.2 of the Directive. It is not possible to specify maximum periods of time which are reasonable in any particular circumstances. This will depend on the individual circumstances in each case and it will always be a question of fact for a tribunal as to what was reasonable in every situation.’
Judges:
Mrs Recorder Cox QC, Edmondson and Palmer
Citations:
Times 06-Feb-2003, [2003] UKEAT 884 – 01 – 1401, EAT/884/01, [2003] IRLR 184, [2003] ICR 482
Links:
Statutes:
Employment Rights Act 1996 57A, Maternity and Parental Leave Regulations 1999 (1999 No 3312), Parental Leave Directive 96/34/EC
Jurisdiction:
England and Wales
Cited by:
Cited – MacCulloch and Wallis Ltd v Moore EAT 11-Feb-2003
EAT Time Off – Public duties . .
Cited – Forster v Cartwright Black Solicitors EAT 25-Jun-2004
EAT Time Off – Parental Leave – Time off for dependant care. Construction of ERA section 57A and Parental Leave Directive to cover death of elderly dependant. Application of Qua [2003] IRLR 184. . .
Cited – Safeway Stores Plc v Truelove EAT 1-Nov-2004
EAT Maternity Rights and Paternity Leave
Time of work necessitated by unexpected failure of baby-sitter. It is not necessary for the ‘reason’ in section 57A(2) Employment Rights Act to be articulated with . .
Cited – Uzowuru v London Borough of Tower Hamlets EAT 2-Mar-2005
EAT Race Discrimination – Victimisation. Appeal in respect of victimisation based on incorrect application of Barton; and of unfair dismissal under both Section 99 and Section 98 of the Employment Rights Act 1996 . .
Cited – RKS Services v Palen EAT 2-Nov-2006
EAT Unfair Dismissal – Reinstatement/re-engagement
No appearance by Appellant but the EAT had the advantage of a Skeleton Argument. There was a manifest error in the decision in that the ET had awarded sum . .
Cited – Royal Bank of Scotland Plc v Harrison EAT 27-Jun-2008
EAT TIME OFF: Parental leave/dependant
The employee was told on 8 December that her childminder was unavailable for 22 December. She did all she could to make alternative care arrangements but was . .
Cited – 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 . .
Cited – Cortest Ltd v O’Toole EAT 7-Nov-2007
EAT Unfair dismissal – Constructive dismissal – Dismissal/ambiguous resignation – Reason for dismissal including substantial other reason – Automatically unfair reasons
Dismissal or resignation. The . .
Lists of cited by and citing cases may be incomplete.
Employment, Discrimination
Updated: 24 October 2022; Ref: scu.178988