Amanuel Ghebrehiwt v Wilson James Ltd

The Employment Appeal Tribunal dismissed the claimant's appeal against an Employment Tribunal judgment that had found he was fairly dismissed for unauthorised absence. The central legal point was whether section 57 A of the Employment Rights Act 1996 (time off for dependants) entitled the claimant to take an extended period of absence to care for his vulnerable mother; the Employment Tribunal held that it did not. The Employment Tribunal also found the claimant unreliable on credibility issues, that the respondent had reasonable grounds to treat the absence as gross misconduct, and that a fair disciplinary procedure had been followed. The EAT found no error of law in those conclusions, rejected challenges as to admission of further evidence, impartiality of the decision-maker and the sufficiency of reasons, and concluded any procedural errors caused no material unfairness.

This is an appeal from an Employment Tribunal judgment (promulgated 26 July 2022) following the claimant's summary dismissal effective 11 March 2021. The claimant had been absent without authorisation from 27 January 2021 until dismissal; he said he was self-isolating and then caring for a vulnerable, shielding mother during the early Covid-19 pandemic and relied on an entitlement under section 57 A ERA 1996.

Nature of the application: appellant sought to overturn the ET’s dismissal of unfair and wrongful dismissal claims and to contend that he was entitled to the time off under section 57 A; he also advanced multiple procedural grounds including challenges to reason for dismissal, refusal to admit further evidence, alleged bias/impartiality of a management decision-maker, and alleged failure to analyse wrongful dismissal separately.

Issues framed and considered:

• whether section 57 A entitled the claimant to an extended period of absence to provide care personally;
• whether the reason for dismissal was that stated by the respondent and whether the dismissal was fair and reached after a fair procedure;
• whether refusal to permit additional evidence on day two caused material unfairness;
• whether the person who raised the allegation and who sat at the disciplinary hearing (Mr Ceesay) was impartial and whether there was any appearance of bias or breach of the ACAS Code;
• whether the tribunal properly dealt with a wrongful dismissal claim separately from unfair dismissal.

Court’s reasoning: The ET had found the claimant unreliable and that he admitted being absent without authorisation. It concluded that section 57 A did not permit the lengthy personal care absence taken and that, accordingly, the respondent was entitled to treat the absence as gross misconduct. The EAT reiterated that appeals lie only on questions of law and reviewed whether any legal error had been shown. It held the ET had given adequate reasons for the finding of reason for dismissal and for rejecting the claimant's conspiracy/other-motive arguments; additional evidence the claimant sought to adduce was immaterial because contact with the employer did not change the fact of unauthorised absence; the ET’s treatment of the impartiality point was not perverse given the management involvement and the nature of the misconduct; and the ET had in substance decided the wrongful dismissal issue by finding the claimant was not entitled to the absence and that the conduct amounted to gross misconduct. The EAT therefore dismissed the appeal.

Appeal dismissed. The Employment Appeal Tribunal held that the Employment Tribunal had not erred in law: the ET legitimately found the claimant absent without authorisation, correctly concluded section 57 A did not authorise the extended personal care absence claimed, applied appropriate legal principles to fairness and procedure, and any procedural or evidential omissions did not cause material unfairness.

Employment Tribunal judgment promulgated 26 July 2022 (East London Employment Tribunal, Employment Judge Peter Wilkinson). Appeal to the EAT by notice dated 12 September 2022. Paper sift under rule 3(7) by Judge Keith, further reconsideration and answers to questions; subsequent paper sift by Clive Sheldon KC rejected the appeal; permission to appeal granted on limited grounds by Mathew Gullick KC (sitting as a Deputy High Court Judge). Final hearing before Judge Stout in the Employment Appeal Tribunal, judgment delivered 12 February 2025.