United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR WINSTON BROWN (Representative) Lewisham Law Centre Ltd 28 Deptford High Street London SE8 4AF
For the Respondent	MR OLIVER HYAMS (of Counsel) Instructed By: John Ford Morrison Solicitors 191 Rushey Green London SE6 4BD


 


MRS RECORDER COX QC:

1. By a decision promulgated on 10th July 2001 the Employment Tribunal at London South dismissed the Appellant's claims of sex discrimination and automatic unfair dismissal, for exercising her right to take time off work for dependants. No appeal is brought in respect of the finding on sex discrimination. In relation to the automatic unfair dismissal claim the Appellant contends, essentially, that the tribunal erred in law in their interpretation and application of section 57A(1) and (2) Employment Rights Act 1996, which provide for time off work for dependants during working hours. The Respondents resist the appeal, maintaining that the tribunal dismissed the complaints because they found, as they were entitled to find on the evidence, that the Appellant had not complied with the requirements of section 57A and thus could not benefit from the right to time off work which they provide.
2. The issues at the heart of this appeal are therefore the correct construction of section 57A of the 1996 Act and whether the tribunal erred in law in dismissing the Appellant's claim. So far as we are aware this is the first time these particular "dependants leave" provisions have fallen to be considered by this Appeal Tribunal and we are grateful for the assistance we received from counsel on both sides in considering their interpretation.

The Background

3. The Appellant began working as a legal secretary for the Respondents, a firm of solicitors, on 5th January 2000. She was dismissed on 27th October 2000. Thus she had insufficient length of service to enable her to complain of "ordinary" unfair dismissal. It was common ground that the reason for dismissal was the Appellant's high level of absence during the relatively short period of her employment. The Respondents contended that there were many "unauthorised absences", meaning absences for which there was no contractual sickness or annual leave entitlement, which made it impossible for them to provide consistent secretarial support for the particular solicitor with whom the Appellant worked.
4. The Appellant, a single mother, contended that the majority of her absences were due to the medical problems suffered by her small son Trey, born in April 1996. He was suffering from a number of "ENT" related conditions and she alleged that from time to time it was necessary for her to be absent from work in order to deal with the situation when he was taken ill. She alleged in her originating application that on all these occasions she informed her employers and was allowed to leave work or to be absent from work until she dealt with the situation which had arisen. She maintained that the time she had taken off on each occasion was reasonable and that there were, in the circumstances, no unauthorised absences. The Respondents denied that they were informed about all these absences and maintained that many of them were unauthorised, making it very difficult for them to run the office.

The hearing in the Employment Tribunal took place on 14th June 2001 and both parties were legally represented.

The Tribunal Decision

5. After referring to the brief main agreed facts the tribunal described the evidence they had heard as covering two main areas. At paragraph 5 they stated:

"The main part of the evidence concerned approximately twenty days on which the Appellant had been absent from work because of problems with her small son (and a few days because of her own ill health), the reasons for those absences and the extent of the communication between the Applicant and her managers about the absences. The other area of the evidence concerned the Respondents business requirements, the nature of the business and the extent to which the Applicant's absences were a problem coupled with some general evidence about the work force as a whole."

6. In relation to the Appellant's absences they found, at paragraph 6, that she:

"... was away from work because of problems with Trey on seventeen days throughout the nine months or so of her brief employment. Of those seventeen days there were two days when the Applicant was only away from work for an hour or two. On another day the Applicant was away from work for about five hours. On the other days the Applicant was away from work for the full extent of the day. Furthermore, a noticeable feature of the absences is that there were five 'blocks' of absence i.e. absences for two or more days."

After referring to Trey's medical problems they stated as follows, at paragraph 8:

"We do not consider that it is necessary or required by the relevant sections of the Act for us to itemise our conclusions day by day in relation to the particular absences. We have no doubt that on the days when the Applicant's absence was triggered by problems with Trey, it was certainly necessary for Trey to be looked after by somebody other than what we describe as the ordinary nursery school or group child minding facilities which are now commonly available throughout the country, either provided by the State system or privately. In other words we accept the Applicant's case in a nutshell that the Applicant's son on those occasions was too unwell to be left at school."

7. There is no consideration at this stage of the provisions of section 57A(1) and the extent to which the right to time off work has been exercised. Instead the tribunal then moves straight to the provisions of section 57A(2) which provide:

"Subsection (1) does not apply unless the employee-

(a) tells his employer the reason for his absence as soon as reasonably practicable, and

(b) except where paragraph (a) cannot be complied with until after the employee has returned to work, tells his employer for how long he expects to be absent."

8. The extent to which the Appellant had communicated with her employers about the length of and reason for her absences was in dispute and the tribunal made the following findings of fact at paragraphs 10 to 12 of their decision:

"10. We find that on a number of occasions the Applicant did not contact her employers either her line manager or one of the partners. We find that on several occasions the Applicant made some contact but did not specify with any sort of precision her anticipated length of absence, and furthermore did not clarify on subsequent days an update to the position. We directed ourselves that this section should be construed firmly. It is in our judgment a precondition of the statutory right and it should not be confused with the implied contractual obligations (or express contractual obligations) which appear in many different contracts of employment as to a persons own sickness absence.

11. On one occasion we accept the Respondent's evidence that it was necessary to contact the Applicant over the weekend to establish whether or not she would be attending work on the Monday. On other occasions we accept the Respondent's evidence that they were not kept informed on a daily basis of the up to date position, and the initial report if made was uncertain. We do not accept that since the Applicant was not herself unwell there was any reason why she could not have reported in on a daily basis, or at any rate made it absolutely clear what was her expected length of absence. Furthermore, it is quite clear to us that at the time of the Applicant's first absence the Respondents were entirely unaware that an absence which had started off because of a problem with the health of Trey had merged into an absence because of the Applicant's own ill health. That clearly had been a surprise to the Respondent witnesses only being appreciated during the course of these proceedings.

12. On this approach our first conclusion on the facts and adopting that approach to the interpretation of section 57A(2) we would dismiss the Applicant's claims for time off for dependents because she had failed to comply with her obligation to tell her employer 'as soon as reasonably practicable' within the meaning of subsection(a) and/or 'for how long she expected to be absent' within the meaning of subsection (b)."

9. That, for the tribunal, was determinative of the Appellant's right to time off under section 57A and, presumably, of her complaint of automatic unfair dismissal under section 99 of the same Act, although they do not refer to that complaint at this point. However, since they had heard all the evidence and were dealing with a "comparatively new jurisdiction" for tribunals, they decided to consider all the evidence on the issues presented to them.
10. The relevant statutory provisions at sections 57(A) and 99 are not set out at any point in the decision, which is unfortunate given the tribunal's expressed intention to deal with all the issues raised by a new jurisdiction. At paragraph 14 they directed themselves that the correct approach was that,

"... in assessing and deciding whether the Applicant had taken 'a reasonable amount of time off' during working hours we should consider the whole picture on the one hand of the absences of the employee and on the other hand of the disruption to the Respondent's business."

Paragraphs 15 to 26 then contain the tribunal's conclusions following that direction. These were essentially as follows:

(1) The Respondents are a small/medium sized "family-friendly" firm of mainly female solicitors and staff, with dependant relatives of their own. The Appellant's absences from work resulted in a noticeable reduction in efficiency and caused inconvenience (paragraphs 15 to 17).

(2) Prima facie the Appellant's absences brought her "within the rights specified under section 57A(a) and/or (b) and/or (d)". The tribunal directed themselves that the principal issue for them to determine was therefore "whether the Appellant had taken a 'reasonable amount of time off', to take action which was 'necessary'." At paragraph 20 they stated as follows,

"In his clear and helpful submissions Mr. Brown argued a number of points. In particular he argued that we should, as it were, look at each absence in turn and then decide in each case whether any particular absence was 'reasonable'. Without any specific guidance or authority on the issue we directed ourselves that the correct approach was to look at the whole picture. We took into account individual absences; the totality of the absences; the proposed likely future absences on the one hand, and the disruption which had occurred in the past and which in turn was likely to occur in the future in assessing our conclusion about 'reasonableness'. We also considered whether the actions taken by the Applicant 'were necessary'."

(3) The key findings of fact, following these directions, are set out at paragraphs 21 – 26 as follows:

"21 Our main conclusion of fact is that we found that a measurable proportion of the absences actually taken by the Applicant could reasonably have been avoided by her. We find as a fact that she could have and ought to have reasonably been able to make better arrangements for the short term problems which she knew at all times she was likely to have to face on an on-going basis. We find that she never seriously faced up to the problem of making arrangements for short term care for Trey, and that when at the end of the day issues were being discussed, she clearly still had not faced up to the situation and was not making serious proposals.

22 Our conclusion of law construing the situation and the subsection is that the various situations contemplated under 57A(1) are all consistent in our judgment with 'short term' absences. The section commences with the idea of absence 'during working hours'. The situations contemplated have similar language. The phrases 'on an occasion'; 'falls ill'; 'unexpected disruption' and the other situations all are words in the time sense of a short finite duration.

23 In relation to illness there is specific reference first of all to 'falls ill'. Then under subsection (b) there is reference to the making of arrangements for a dependent who 'is ill'. We note in particular that the section specifically does not contemplate the situation of an employee 'looking after' somebody who is ill. The permitted absence is 'to make arrangements' for the provision of care – not to provide the care personally.

24 It is quite clear on the facts before us that during July, August and September the Applicant was simply staying at home looking after Trey and indeed in her own words she stated, and indeed asserted that she could not make other arrangements.

25 Our conclusion of fact that the Applicant did not take absences 'to make arrangements' probably means that as a matter of law the Applicant was not taking an absence which was 'necessary' within the meaning of the section. If that is the correct legal construction of our factual conclusions the Applicant again would fail for that reason. If on the other hand the correct approach is to look at the whole question of reasonableness, we find that the Applicant had taken and indeed proposed to take an unreasonable amount of time looked at in the round.

26 For the foregoing various reasons therefore, we find that the Applicant has not established any breach of her right under section 57A, and that her claim of automatically unfair dismissal under section 99 fails because of our foregoing conclusions."

The remainder of the tribunal's decision addresses the complaint of sex discrimination, in respect of which there is no appeal, and we shall not therefore refer to it.

The Law

11. Before dealing with the criticisms made of this tribunal's decision, we shall set out the relevant legislative framework and indicate the approach we consider should be taken by tribunals when interpreting and applying these provisions.
12. The tribunal was right to observe that this is a comparatively new jurisdiction. The right to unpaid "dependants' leave", as it is known, was introduced by the Parental Leave Directive 96/34/EC and its domestic implementation was secured by sections 57(A) and (B) Employment Rights Act 1996 (inserted by the Employment Relations Act 1999.) The United Kingdom was required to introduce laws necessary to comply with the Directive by 15^th December 1999 and the relevant provisions came into force on that day. The right is an important one, which is available to all employees, male and female, irrespective of their hours of work and whether they are full or part-time and employed on temporary or permanent contracts. No qualifying period of employment is required and the right is therefore available to employees from the very first day of their employment.
13. In interpreting the statutory provisions assistance is derived from the Directive itself, the purpose of which was to put into effect the annexed Framework Agreement on parental leave concluded between the general cross-industry organisations (UNICE, CEEP and the ETUC). The Preamble to the Framework Agreement includes the following words:

"The enclosed framework agreement represents an undertaking by UNICE, CEEP and the ETUC to set out minimum requirements on parental leave and time off from work on grounds of force majeure, as an important means of reconciling work and family life and promoting equal opportunities and treatment between men and women."

Paragraph 6 of the General Considerations states:

"Whereas measures to reconcile work and family life should encourage the introduction of new flexible ways of organising work and time which are better suited to the changing needs of society and which should take the needs of both undertakings and workers into account."

Clause 1, paragraph 1 provides:

"This agreement lays down minimum requirements designed to facilitate the reconciliation of parental and professional responsibilities for working parents."

Clause 3 is headed: "Time off from work on grounds of force majeure". It provides:

"1 Member States and/or management and labour shall take the necessary measures to entitle workers to time off from work, in accordance with national legislation, collective agreements and/or practice, on grounds of force majeure for urgent family reasons in cases of sickness or accident making the immediate presence of the worker indispensable.

2 Member States and/or management and labour may specify the conditions of access and detailed rules for applying clause 3.1 and limit this entitlement to a certain amount of time per year and/or per case."

Clause 4.1 provides:

"Member States may apply or introduce more favourable provisions than those set out in this agreement."

14. Section 57A Employment Rights Act 1996 provides as follows:

"57A Time off for dependants

(1) An employee is entitled to be permitted by his employer to take a reasonable amount of time off during the employee's working hours in order to take action which is necessary -

(a) to provide assistance on an occasion when a dependant falls ill, gives birth or is injured or assaulted.

(b) to make arrangements for the provision of care for a dependant who is ill or injured,

(c) in consequence of the death of a dependant,

(d) because of the unexpected disruption or termination of arrangements for the care of a dependant, or

(e) to deal with an incident which involves a child of the employee and which occurs unexpectedly in a period during which an educational establishment which the child attends is responsible for him.

(2) Subsection (1) does not apply unless the employee –

(a) tells his employer the reason for his absence as soon as reasonably practicable,

and

(b) except where paragraph (a) cannot be complied with until after the employee has returned to work, tells his employer for how long he expects to be absent.

(3) Subject to subsections (4) and (5), for the purposes of this section 'dependant' means, in relation to an employee –

(a) a spouse,

(b) a child,

(c) a parent,

(d) a person who lives in the same household as the employee, otherwise than by reason of being his employee, tenant, lodger or boarder.

(4) For the purposes of subsection (1)(a) or (b) 'dependant' includes, in addition to the persons mentioned in subsection (3), any person who reasonably relies on the employee -

(a) for assistance on an occasion when the person falls ill or is injured or assaulted,

or

(b) to make arrangements for the provision of care in the event of illness or injury.

(5) For the purposes of subsection (1)(d) 'dependant' includes, in addition to the persons mentioned in subsection (3), any person who reasonably relies on the employee to make arrangements for the provision of care.

(6) A reference in this section to illness or injury includes a reference to mental illness or injury."

15. By way of general observation, and having regard to the Directive and in particular the use of the words "force majeure" when referring to time off from work during working hours, we agree with the Tribunal's conclusions at paragraph 22 as to the nature of the absences contemplated in this section. The statutory right is, in our view, a right given to all employees to be permitted to take a reasonable amount of time off work during working hours in order to deal with a variety of unexpected or sudden events affecting their dependants, as defined, and in order to make any necessary longer-term arrangements for their care.
16. The right to time off to "…provide assistance" etc. in subsection (1)(a) does not in our view enable employees to take time off in order themselves to provide care for a sick child, beyond the reasonable amount necessary to enable them to deal with the immediate crisis. Leave to provide longer-term care for a child would be covered by parental leave entitlement if the employee has responsibility for the child and is entitled to parental leave (that is, has at least one year's service). That does not arise in the present case because the Appellant had only been employed for 9 months at the time of her dismissal. Section 57A(1)(a) envisages some temporary assistance to be provided by the employee, on an occasion when it is necessary in the circumstances specified. Under subsection (1)(b) time off is to be permitted to enable an employee to make longer-term arrangements for the care of a dependant, for example by employing a temporary carer or making appropriate arrangements with friends or relatives. Subsection (1)(d) would include, for example, time off to deal with problems caused by a child-minder failing to arrive or a nursery or playgroup closing unexpectedly.
17. The right is a right to a "reasonable" amount of time off, in order to take action which is "necessary". In determining whether action was necessary, factors to be taken into account will include, for example, the nature of the incident which has occurred, the closeness of the relationship between the employee and the particular dependant and the extent to which anyone else was available to help out.
18. We consider that, in determining what is a reasonable amount of time off work, an employer should always take account of the individual circumstances of the employee seeking to exercise the right. It may be that, in the vast majority of cases, no more than a few hours or, at most, one or possibly two days would be regarded as reasonable to deal with the particular problem which has arisen. Parliament chose not to limit the entitlement to a certain amount of time per year and/or per case, as they could have done pursuant to Clause 3.2 of the Directive. It is not possible to specify maximum periods of time which are reasonable in any particular circumstances. This will depend on the individual circumstances in each case and it will always be a question of fact for a tribunal as to what was reasonable in every situation.
19. Where an employee has exercised the right on one or more previous occasions and has been permitted to take time off, for example, to deal with a dependant child's recurring illness, an employer can in our view take into account the number and length of previous absences, as well as the dates when they occurred, in order to determine whether the time taken off or sought to be taken off on a subsequent occasion is reasonable and necessary. An employee is entitled to be permitted to take a reasonable amount of time off to take action necessary to deal with a child who "falls ill" under subsection (1)(a). Mr. Brown, appearing for the Appellant in this case, submits that this subsection means that an employee must be permitted to take time off during working hours on every occasion when a child falls ill, even where the child is known to be suffering from an illness which results in regular relapses and no matter how frequently time off is required to deal with such relapses. Mr. Hyams, for the Respondents, submits that this is not the correct construction of section 57A(1)(a).
20. We considered that there was some ambiguity in the legislation as to the frequency of periods of time off permitted when a dependant "falls ill" and we therefore had regard to Hansard, the relevant extracts we were shown being from the debate in the House of Lords on 8^th July 1999. At Columns 1084 and 1085 Lord Sainsbury of Turville stated that:

"The statutory right will be limited to urgent cases of real need……We have now set out clearly on the face of the Bill the circumstances in which leave can be take……We intend the right to apply where a dependant becomes sick or has an accident, or is assaulted, including where the victim is distressed rather than physically injured.

………We have not set a limit on the amount of time which employees can take off. This right is to help people deal with emergencies. A limit would not make sense and could be seen as a minimum, which employees might well consider an entitlement to be added to their annual leave. In all cases, the right will be limited to the amount of time which is reasonable in the circumstances of a particular case. For example, if a child falls ill with chickenpox the leave must be sufficient to enable the employee to cope with the crisis – to deal with the immediate care of the child and to make alternative longer-term care arrangements. The right will not enable a mother to take a fortnight off while her child is in quarantine. In most cases, whatever the problem, one or two days will be the most that are needed to deal with the immediate issues and sort out longer-term arrangements if necessary."

21. We do not accept Mr. Brown's submissions as to the correct interpretation of the statutory provisions. Whilst we recognise that no limit has been set on the number of times when an employee can exercise this right, an employee is not in our view entitled to unlimited amounts of time off work under this section even if in each case s/he complies with the notice requirements in section 57A(2) and takes a reasonable amount of time off on each occasion. Logically this could result in an employee being entitled, regularly, to take a day or more off each week whenever the medical condition causes the child to become unwell; and we do not regard this as being what the legislation is intended to provide. The legislation contemplates a reasonable period of time off to enable an employee to deal with a child who has fallen ill unexpectedly and thus the section is dealing with something unforeseen. Once it is known that the particular child is suffering from an underlying medical condition, which is likely to cause him to suffer regular relapses, such a situation no longer falls within the scope of subsection (1)(a) or indeed within section 57A at all. An employee would, in such circumstances, be permitted to reasonable time off work in order to make longer-term arrangements for care, as is provided by subsection (1)(b). Where the line is to be drawn seems to us to be a matter which will always fall to be decided on the facts of each case. A parent who has been permitted time off to deal with a child who has fallen ill with chickenpox might, for example, subsequently be permitted to further time off if unexpected complications arise requiring immediate action. The key to this is in our view, foreesability and it will inevitably be a question of fact and degree in each situation.
22. Further, in determining what is a reasonable amount of time off work, we consider that the disruption or inconvenience caused to an employer's business by the employee's absence are irrelevant factors, which should not be taken into account. In the first place it is clear that the needs of employers' undertakings had already been taken into account when the Framework Agreement was implemented by the Directive (see for example paragraph 6 of the General Considerations). Secondly, there is nothing in the domestic provisions implementing the Directive which suggests that such matters should be taken into account in deciding what is a reasonable amount of time off work in any particular case. Finally, the right is, essentially, a right to time off to deal with the unexpected. What is reasonable time off in the particular situation which has arisen will depend on what has occurred and the individual employee's own circumstances. The operational needs of the employer cannot be relevant to a consideration of the amount of time an employee reasonably needs to deal with emergency circumstances of the kind specified. A dependant child could suddenly fall ill and necessitate action, which requires an employee's absence from work, at a time which the employer could show caused acute or even insurmountable operational problems. Taking into account the employer's needs as relevant to the overall reasonableness of the amount of time taken off would, in our view, frustrate the clear purpose of the legislation which is to ensure that employees are permitted time off to deal with such an event, whenever it occurs, without fear of reprisals, so long as they comply with the requirements of section 57A(2).

The Present Appeal

23. This Appellant's complaint was one of automatic unfair dismissal pursuant to section 99 Employment Rights Act 1996 which provides, so far as is relevant, as follows:

"99 Leave for family reasons

(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if -

(a) the reason or principal reason for the dismissal is of a prescribed kind, or

(b) the dismissal takes place in prescribed circumstances.

(2) In this section 'prescribed' means prescribed by regulations made by the Secretary of State.

(3) A reason or set of circumstances prescribed under this section must relate to –

(a) pregnancy, childbirth or maternity,

(b) ordinary, compulsory or additional maternity leave,

(c) parental leave, or

(d) time off under section 57A;

and it may also relate to redundancy or other factors."

The Regulations referred to are the Maternity and Parental Leave Regulations 1999, Regulation 20 of which provides as follows:

"20 Unfair dismissal

(1) An employee who is dismissed is entitled under section 99 of the 1996 Act to be regarded for the purposes of Part X of that Act as unfairly dismissed if -

(a) the reason or principal reason for the dismissal is of a kind specified in paragraph (3), or

(b) the reason or principal reason for the dismissal is that the employee is redundant, and regulation 10 has not been compiled with.

(3) The kinds of reason referred to in paragraphs (1) and (2) are reasons connected with –

...

(e) the fact that she took or sought to take –

(i) additional maternity leave;

(ii) parental leave, or

(iii) time off under section 57A of the 1996 Act."

24. The essential question for this tribunal was therefore whether the reason or principal reason for the Appellant's dismissal on 27^th October 2000 was that she had taken, or had sought to take, time off under section 57A. The Appellant's case was that she had been permitted to take time off on every occasion and that she had notified her employers as required and had always taken a reasonable amount of time off. The Respondents denied having had proper notice of the absences and did not accept that the time taken off was reasonable. They maintained that the absences were therefore unauthorised.
25. A tribunal asked to determine this issue should ask themselves the following questions:

(1) Did the Applicant take time off or seek to take time off from work during her working hours? If so, on how many occasions and when?

(2) If so, on each of those occasions did the Applicant (a) as soon as reasonably practicable inform her employer of the reason for her absence; and (b) inform him how long she expected to be absent; (c) if not, were the circumstances such that she could not inform him of the reason until after she had returned to work?

If on the facts the Tribunal find that the Applicant had not complied with the requirements of section 57A(2), then the right to take time off work under subsection (1) does not apply. The absences would be unauthorised and the dismissal would not be automatically unfair. Ordinary unfair dismissal might arise for consideration however, if the employee has the requisite length of service.

(3) If the Applicant had complied with these requirements then the following questions arise:

(a) Did she take or seek to take time off work in order to take action which was necessary to deal with one or more of the five situations listed at paragraphs (a) to (e) of subsection (1)?

(b) If so, was the amount of time off taken or sought to be taken reasonable in the circumstances?

(4) If the Applicant satisfied questions (3)(a) and (b), was the reason or principal reason for her dismissal that she had taken/sought to take that time off work?

If the Tribunal answers that final question in the affirmative, then the Applicant is entitled to a finding of automatic unfair dismissal.

26. In the present case the Tribunal, in our view, erred in their approach to the construction of section 57A. Firstly, although they find that the Appellant was away from work due to problems with her son on a total of seventeen days, they regarded it as unnecessary to further identify those occasions and the extent to which, if at all, the Appellant had complied with the requirements of 57A(2) so as to be able to rely upon the right to time off work given to her in section 57A(1).
27. Clear findings as to the extent of the Appellant's compliance with section 57A(2) were essential here, in view of the dispute between the parties and the Respondents' claim that the absences were unauthorised. Save that in paragraph 10 the Tribunal found that there was non-compliance in one form or another "on a number of occasions" or "on several occasions" there is no further analysis of the extent to which, on each occasion that she took time off, the Appellant had informed her employers as required by Section 57A(2). The fact that there was found to be a failure to comply only on a number of occasions suggests that there were other occasions when she did comply. We are not sure what the Tribunal meant, in paragraph 10, by the need to construe this section "firmly". It is correct that, for the right to time off under section 57A(1) to apply, there must be compliance with the provisions of section 57A(2). That being so it was necessary in our view for this Tribunal to identify whether, on each occasion of absence connected with Trey's problems, the Appellant had complied with section 57A(2). Their decision to dismiss the Appellant's claims, set out in paragraph 13, on the basis of non-compliance with that section was therefore arrived at in error.
28. The Tribunal also suggests, at paragraph 11, that there is a duty on an employee to report to her employers "on a daily basis" whilst she is taking time off work. We do not consider that any such duty arises under section 57A(2). The duty on an employee is to tell her employer about the reason for her absence and, save where she is unable to do so before she returns to work, how long she expects to be absent. The extent to which her absence is regarded as necessary and reasonable in amount will depend on the circumstances. There is no continuing duty on an employee to update the employer as to her situation, though of course many employees would no doubt do this as a matter of course.
29. We have already set out above our view that the disruption caused to the employer's business by the employee's time off is not relevant to the question of whether a reasonable amount of time was taken. We consider the Tribunal's direction to themselves to the contrary, in paragraph 14, to be an error of law, which is repeated at paragraph 20, when they address their minds to "reasonableness" overall, looking at the whole picture rather than each period of absence separately.
30. Mr. Brown also criticises the Tribunal's approach to the substantive right in section 57A(1), which they also deal with collectively rather than deciding whether, on the various occasions of absence, the Appellant brought herself within the provisions of the section. We agree with those criticisms. Having highlighted subsection (1)(a), (b) and (d) as potentially relevant to her circumstances, the Tribunal finds that "a measurable proportion of the absences actually taken by the Applicant could reasonably having been avoided by her". Once again this suggests that a number of the absences could not have been avoided but they are not identified.
31. Nor does the Tribunal make clear findings as to whether the Appellant, on some occasions at least, took a reasonable amount of time off in order to take action necessary to deal with situations which fell within subsection(1). The Tribunal find at paragraph 24 that during July, August and September "the Applicant was simply staying at home looking after Trey and indeed in her own words she…asserted that she could not make other arrangements." It may be that, as the Tribunal suggest in paragraph 25, the Appellant's failure to make arrangements for Trey's care during her time off "probably" meant that she could not succeed in her complaint. However, it is not possible to discern satisfactorily from the Tribunal's reasoning that this was their finding. In this way we consider that the Tribunal erred in dismissing the complaint of automatic unfair dismissal.
32. It is unfortunate that the Tribunal did not consider specifically in their Decision the events that led up to the decision to dismiss in October. Indeed section 99 and the failure of the complaint of unfair dismissal is not even mentioned until the concluding paragraph (26) in this section of the Decision. It seems to us that it would have been helpful to concentrate on the fact that this was an allegation of automatically unfair dismissal. The Respondents' reasons for dismissing the Appellant when they did were fully set out in the witness statement we were shown from one of the Respondents' partners, Jenny Morrison. A close examination of the events in September and October and the extent to which the Appellant had complied with section 57A(2) and had taken time off work or sought to take time off in exercise of her section 57A right would have been, in our view, a sensible place to start in the circumstances. The extent to which any earlier periods of absence were relevant to the Respondents' decision to dismiss and required findings by the Tribunal as to the section 57A right would then have become apparent from the evidence.
33. For these reasons we consider that the Tribunal erred in dismissing the Appellant's complaint, that this appeal should therefore be allowed and that the matter should be remitted for re-hearing before a fresh Tribunal as soon as practicable.