Time off for dependants and dismissal

Employees are entitled to take a reasonable amount of unpaid time off work to deal with situations affecting their dependants.  Legislation does not limit the amount of time an employee can take but, in most cases, it is likely to be a few hours or, at most, a few days.  The circumstances of the situation will be a factor in determining a “reasonable” period of time.

The right to take time off applies only if the employee tells their employer the reason for their absence as soon as it is reasonably practicable to do so, and if they indicate how long they expect to be away from work. 

Usually, employees must have two years’ continuous service before they can make a claim for unfair dismissal but there are exceptions. Where an employee is dismissed because they took, or sought to take, time off to look after a dependant, the employee can make a claim for automatic unfair dismissal.

A recent case dealing with such a claim shows that before an employee can successfully claim automatic unfair dismissal they will have to show they did their best to contact their employer and indicate when they would be able to return to work. 

In this case Mr K had been issued with a final warning for attendance issues.  His partner was heavily pregnant and there were concerns about her health.  These concerns first came to light on a Sunday and the following day – the Monday – he took her to hospital several times.  However, Mr K failed to contact his employer to explain the situation, leaving his father to telephone on his behalf, which he did on the Monday afternoon.  On Tuesday, Mr K accompanied his partner to hospital, where she was admitted to have the baby.  He did not attend work, nor did he telephone his employer that day.  On Wednesday he received a text from his employer telling him to contact the office urgently.  When he did so, he was severely criticised for failing to make contact and for not coming to work.  That evening Mr K left a message on his employer’s answer phone stating that he would not be in work the following day either (Thursday). 

Mr K was dismissed on the basis that he had failed to make reasonable efforts to inform his employer that he would not be attending work during the week in question and, in light of the live final warning, he was dismissed.  His internal appeal was also dismissed. 

At the subsequent disciplinary hearing Mr K claimed that the battery on his mobile phone had run out, that he had called his father using the hospital pay phone and asked his father to phone his employer because he could not remember his employer’s phone number. 

Mr K made a claim in the employment tribunal and then appealed to the Employment Appeal Tribunal.  Both found that his dismissal was not automatically unfair because he had not informed his employer of the reason for his absence as soon as it was reasonably practicable. 

The employment judge said that even if his phone battery had run down Mr K could have recharged it in time to telephone his employer early in the morning.  The judge also said that once his partner had gone into labour he could have made a quick call to his employer and/or borrowed a phone.  He also noted that there was a pay phone available that he could have used. 

This is a good decision for employers because the excuses given by the employee were given short shrift.  Employees must think about and use all means at their disposal to contact their employers, remembering that they have an obligation to keep their employer informed of the reasons for their absence. 

Reggie Lloyd
01206 217347
[email protected]