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Time off for dependants and unfair dismissal

Posted by TonyBrownEmploymentSolicitor on November 3, 2014

Employees have the right to take time off during working hours to deal with emergencies involving their dependants. Employers must not unreasonably refuse an employee this time off and dismissing an employee for taking, or seeking to take, time off under this right is automatically unfair.

As time off for dependants is for unforeseen circumstances, the employee does not need to give their employer advance warning of the intention to take time off. However, the employee must let the employer know the reason for the absence as soon as reasonably practicable. 

The following case illustrates the limits of the protection available to employees dismissed for taking time off who do not contact their employers to explain the reason for their absence as soon as reasonably practicable. 

In the case in question, C’s wife was heavily pregnant. There were concerns about her health and C took her to hospital instead of going to work. He did not contact his employer about his absence but his father telephoned the employer in the afternoon. C remained off work for the next 2 days but did not contact his employer. When he did speak to his employer, on his third day of absence in response to a text from the employer to contact them urgently, he was told that he would have to attend a disciplinary hearing for failing to make contact and not coming to work. 

At his disciplinary hearing, C explained that he did not telephone the employer to report his absence because the battery on his mobile phone was dead so he called his father from a hospital payphone and asked him to phone his employer as he did not have the number.

The employer decided that C had failed to make reasonable efforts to inform them that he would not be attending work. As he had a current final written warning for poor time-keeping the employer dismissed him. 

C argued before the ET that he had been dismissed for taking time off for dependants and that his dismissal was therefore automatically unfair. The ET dismissed the claim on the basis that the right to time off for dependents did not apply because C had not complied with the requirement to notify his employer of the reason for his absence as soon as reasonably practicable. The ET found that there were steps he could have taken to contact his employer even if his phone battery had run out. He could have borrowed a phone and in any event there was a payphone available at the hospital that he could have used.

The ET decided that the reason for C’s dismissal was not because he exercised the right to take time off for dependants but for misconduct and the dismissal was fair in the circumstances. 

Comment

This case demonstrates the limits of the protection available to employees dismissed for exercising the right to time off for dependants. They are only able to claim that dismissal is automatically unfair if they comply with the statutory provisions in full, including the obligation to explain the reason for their absence as soon as reasonably practicable.

In this case, the ET also ruled against the Claimant for ‘ordinary’ (as opposed to automatic) unfair dismissal, deciding that dismissal was within the band of reasonable responses as the Claimant had a current final written warning on file and a fair procedure had been followed.