Summary: Does an employee forfeit their protection from dismissal for taking time off work for an emergency involving a dependant, where they fail to notify their employer as soon as it is reasonably practicable to do so?
Yes, says the EAT in Ellis v Ratcliff Palfinger Ltd available here.
Facts: Mr Ellis was employed by Ratcliff Palfinger Ltd (Ratcliff). Mr Ellis had a history of absence, such that he was given 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.
Just over two months later, Mr Ellis took his heavily pregnant partner to hospital, at first due to illness and then because she had been admitted to give birth. On only one of these occasions did Mr Ellis attempt to notify Ratcliff of his absence – and even on this occasion it was Mr Ellis’s father who telephoned Ratcliff on his behalf. (Mr Ellis said that his mobile telephone’s battery was flat).
Mr Ellis was dismissed for failing to make reasonable efforts to inform Ratcliff that he would not be attending work, having regard to the live warning on his file. He was given pay in lieu of notice. Mr Ellis appealed but his appeal was dismissed.
Mr Ellis then brought a claim for unfair dismissal, alleging that he had been automatically unfairly dismissed for taking time off work because his dependant was giving birth. The Tribunal held that Mr Ellis was not automatically unfairly dismissed for exercising the right to take time off for dependants. Mr Ellis appealed.
The EAT upheld the Tribunal decision, ruling that the reason Mr Ellis gave for not contacting Ratcliff (his mobile telephone’s battery was flat) was not satisfactory – he could have recharged it, borrowed another telephone or used the payphone at the hospital.
As Mr Ellis had not contacted his Ratcliff ‘as soon as reasonably practicable’, he could not claim to have been automatically unfairly dismissed. Mr Ellis was properly dismissed for misconduct.
Implications: If an employee does not comply with the legal provisions of a right such as time off for dependants, then they are unlikely to be able to seek the relevant protection from dismissal. Employees do need to comply with requirements such as informing their employers ‘as soon as reasonably practicable’. If employees find themselves in difficulty and unable to go to their place of work, they must find a means, as soon as they can, of informing their employer.