Ellis v Ratcliff Palfinger Ltd

An employee relying on time off for dependants must comply with the notification condition in section 57A of the Employment Rights Act 1996. Whether notice was given as soon as reasonably practicable is a fact-sensitive question. It requires consideration of the employee’s particular circumstances, including matters affecting the practical ability to make contact.

Where the Employment Tribunal has considered those circumstances and made sustainable findings that timely contact could reasonably have been made, an appellate challenge is one of perversity and will fail absent a proper basis for it. In that event, the employee cannot rely on the statutory protection and dismissal for the separate misconduct of failing to notify the employer is not automatically unfair.

The claimant was dismissed after failing to make adequate contact with his employer during absences surrounding his partner’s admission to hospital to give birth. He contended that the absence was protected time off for a dependant and that his dismissal was automatically unfair.

Employment Judge Mahoney, sitting at Watford, found that he had not told the employer the reason for, and expected duration of, his absence as soon as reasonably practicable. The Tribunal held that the principal reason for dismissal was misconduct and dismissed the claim.

The claimant appealed, challenging the Tribunal’s treatment of the first telephone contact and its conclusion on reasonable practicability under section 57A of the Employment Rights Act 1996.

1. Appeal dismissed. The Employment Judge was entitled to find that the claimant could not invoke section 57A of the Employment Rights Act 1996. The Judge had found that the claimant failed to tell the employer the reason for his continuing absence as soon as reasonably practicable.

2. The Monday call made by the claimant’s father was correctly treated as the first contact and as notice relating to the claimant’s attendance at hospital with his partner that day. It did not resolve the separate issue of notification after his partner was admitted on Tuesday to give birth. The Employment Judge did not disregard the Monday call or wrongly treat Wednesday as the first contact.

3. Reasonable practicability had to be assessed in the claimant’s particular circumstances. The Employment Judge had considered the pregnancy, the concerns about the mother’s health and the hospital attendances. He was entitled to reject the explanation that a discharged mobile telephone prevented contact. On the findings, the claimant could reasonably have recharged or borrowed a telephone, used a hospital telephone, or made a call from the payphone which he had used to contact his father.

4. The challenge was in substance one of perversity. There was no basis to interfere with the factual conclusion that the statutory notification requirement had not been met. The claimant was therefore unable to rely on section 57A or the automatic-unfair-dismissal protection in section 99. The Tribunal was entitled to find that the principal reason for dismissal was misconduct and that the dismissal was fair.

5. The Employment Judge’s reference to Regulation 20 of the Maternity and Parental Leave Regulations 1999 was legally erroneous, but it did not affect the decision on sections 57A and 99.

• Employment Appeal Tribunal: dismissed the claimant’s appeal from the Employment Tribunal.
• Employment Tribunal, Watford: Employment Judge Mahoney dismissed the claim after finding that the statutory notification condition in section 57A of the Employment Rights Act 1996 was not met and that misconduct was the principal reason for dismissal.