Employees have the right to take a reasonable amount of unpaid absence from work in order to deal with certain emergency situations involving their dependants. The employee must tell his employer the reasons for the absence and the expected duration of the absence as soon as reasonably practicable.
Mr E was an employee of RP Ltd. He had been issued with a final written warning due to problems with his attendance at work. On a subsequent occasion (on a Monday) Mr E took his pregnant partner to hospital due to concerns about her health. Mr E did not notify his employer, but his father telephoned RP later in the day on his behalf.
The following day (Tuesday) Mr E’s partner was re-admitted to hospital to give birth. Mr E failed to contact his employer either that day, or the next, until he received a text from a colleague. He telephoned the office and was criticised for failing to attend work, or notifying them of the reasons for his absence. He later left a message on their answerphone to say that he would also be absent on the following day (Thursday).
Mr E was subsequently invited to a disciplinary meeting. He claimed that the battery of his mobile phone was flat, so he had asked his father to contact RP on his behalf. Mr E was dismissed with pay in lieu of notice. His internal appeal and claim to an employment tribunal for automatic unfair dismissal (for taking time off to deal with a dependant) were both unsuccessful. Mr E appealed to the EAT.
The EAT upheld the tribunal’s decision. The EAT held that when the reason for Mr E’s absence changed (due to his partner giving birth) he should have notified RP, even though both absences were connected to his partner’s pregnancy.
The EAT noted that what is reasonably practicable must be determined with reference to the facts of each case. It did not accept Mr E’s explanation that his phone had run out of battery the previous day; if this was the case, he could have borrowed a phone or used a payphone instead.
The EAT held that the tribunal was entitled to find that it would have been reasonably practicable for Mr E to contact RP sooner. As a result, the tribunal properly concluded that the dismissal was not automatically unfair.
This decision provides welcome guidance on when it is considered ‘reasonably practicable’ for an employee to report the reasons for their absence to their employer. It also emphasises that employees should take reasonable steps to keep their employer updated about any relevant developments or the need for additional time off.
Employers should, however, be mindful that a single failure to notify will not necessarily merit dismissal. Whilst failure to report the reasons for absence in a timely fashion may mean that dismissing an employee would not be automatically unfair, employers should still be satisfied that dismissal would be fair in all the circumstances. In this particular case, the employee had previously been issued with a final written warning in relation to his attendance and the employer had conducted a reasonable investigation before reaching the decision to dismiss.
A copy of the EAT judgment is available here
** 28th February 2020 UPDATE:
The new legislation relating to Parental and Bereavement Leave and Pay Act 2018 will give all employed parents the right to 2 weeks’ leave if they lose a child under the age of 18, or suffer a stillbirth from 24 weeks of pregnancy. Parents will also be able to claim pay for this period, subject to meeting eligibility criteria. See our updated article for further information: 28 February 2020 -Employment Law Update
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*The information provided in this article is designed to provide useful information on the subject, not to provide specific legal advice.