Dependant leave is designed to be used to facilitate urgent or emergency issues, but employees cannot just take time off without letting you know. In Ellis v Ratcliff Palfinger, the EAT confirmed that the employee must still contact their employer as soon as reasonably practicable.
The statutory right
All employees have the right to take a reasonable amount of unpaid leave to deal with urgent and emergency matters that arise with their dependents. This can include making arrangements where someone gives birth, falls ill or there is a death. We have very little guidance on what is reasonable time off as it will always depend on the facts that are impacting upon the employee. It could vary from a couple of hours, to a few days. However, the employee is under an obligation to inform their employer as soon as reasonably practicable and to tell them, where possible, how long they expect to be absent. Disruption to the employer is irrelevant and dismissal of an employee taking dependant leave is automatically unfair.
Mr Ellis’s dependants leave
In Ellis, Mr E’s employer required that staff inform them of absence within 30 minutes of a shift starting or by a message to be left on their absence telephone line. E had a history of attendance issues and was subject to a final written warning.
E’s partner was pregnant in February 2012 and on Monday 6 February, E took his partner to hospital a number of times but failed to contact his employer to explain his absence. He did manage to contact his father, who telephoned E’s employer that afternoon. The following day, E attended hospital with his partner, who gave birth. E did not contact his employer. On Wednesday 8 February, E received a text message telling him to contact his employer. He subsequently left a telephone message to inform his employer that he would not be returning to work until the following week.
E was invited to a disciplinary hearing soon after his return to work and subsequently dismissed for failing to make reasonable efforts to inform them about his absence.
E believed that he had been automatically unfairly dismissed. His claim was rejected in the Employment Tribunal and he appealed.
The Employment Appeal Tribunal reviewed the Employment Judge’s decision and concluded that there had been an appropriate examination of whether E had made proper attempts to inform his employer. E had contended that he had been unable to contact his employer as the battery on his mobile phone had run down. The Employment Judge took into account all of E’s evidence, including the circumstances (the birth) but found that E could have recharged his phone sufficiently to make a call to his employer. Once his partner had gone into labour, he could then have made a call to his employer. Even if his phone was flat, he could have borrowed a phone or used a payphone. E had not made the effort to do any of this.
Everyone recognises that emergency situations arise and the statutory right to dependants leave facilitates this. If an employee is to have the full protection offered, however, they must make efforts to keep their employer informed. Leaving an employer in the dark (as E had) is unacceptable. There is an expectation that employees will make at least some effort to make contact and not just wait until the employer manages to make contact. Childbirth is of course important and quite a distraction, but it is not an excuse for failing to make contact with your employer. The wage-work bargain necessitates employees be paid for their work, but employees still need to tell their employer if they cannot work.
Click one of our articles to continue reading about duty to make reasonable adjustments and the latest TUPE update. Binding communications about pay, when employees strike, the on-call conundrum, the future of Employment Tribunal fees, the scope of reasonable adjustments and finally In a nutshell.