United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR GORDON MENZIES (of Counsel) Instructed by: Messrs Whittles Solicitors Pearl Assurance Street Albert Square Manchester M2 4ER
For the Respondent	MR MARK DALE (of Counsel) Instructed by: Messrs DLA Solicitors India Buildings Water Street Liverpool L2 0NH

SUMMARY

Maternity Rights and Paternity Leave

Time of work necessitated by unexpected failure of baby-sitter. It is not necessary for the "reason" in section 57A(2) Employment Rights Act to be articulated with any formality. It was clear to the Respondent that the Claimant's case fell within section 57A(2) and the Employment Tribunal had construed the section too restrictively. It is a right to be exercised without formality by parents in difficult circumstances. Qua applied.


 


HIS HONOUR JUDGE McMULLEN QC

1. This case is about the statutory right of an employee to take time off in certain urgent circumstances for care of dependants. The judgment represents the views of all three members. We will refer to the parties as Claimant and Respondent.
2. It is an appeal by the Claimant in those proceedings against a decision of an Employment Tribunal sitting at Liverpool, Chairman Mr D Reed, registered with Extended Reasons on 9 February 2004. The parties were represented by solicitors and today by counsel, the Claimant by Mr Gordon Menzies and the Respondent by Mr Mark Dale.
3. The Claimant contended that he had sought time off from his employer to look after his daughter. This is had been unreasonably refused by the Respondent. The Respondent denied that the Claimant was so entitled. The primary issue was whether the Respondent's Manager knew of the circumstances which provoked the Claimant's urgent request. The Tribunal decided that the Respondent did not unreasonably refuse the request. The Claimant appeals against that decision. I gave Directions sending this appeal to a full hearing.

The legislation

4. The relevant provisions of the legislation are as follows. Section 57A was inserted into the Employment Rights Act 1996 to provide a right in certain circumstances for an employee to take time off for dependants and 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 -

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

(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 compiled with until after the employee has returned to work, tells his employer for how long he expects to be absent."

5. The right to complain where there has been an unreasonable refusal to permit time off as required by section 57A is provided by section 57B. The Tribunal may make a declaration or an award of compensation to be paid by the employer to employee. The Tribunal directed itself itself without citing expressly the relevant provisions.

The facts

6. The facts in this case have been enlarged slightly by consideration of the Originating Application and of the Notice of Appearance. The Employment Tribunal found:

"1. The Respondent is one of the leading grocery retailers in the United Kingdom employing approximately 85,000 people at nearly 480 stores nationwide.

2. The Claimant is employed as a warehouse operative in the Ambient warehouse at the Respondent's depot in Warrington.

3. The Respondent operates at this site on a seven day 24 hours basis with staggered working meaning that a percentage of employees are off at any time.

4. The logistics of distribution are carefully planned ensuring that food stuffs are delivered on time and to the appropriate high standard to stores."

7. On 13 July 2003 the Claimant sought annual leave for 26 July 2003. This was refused. The reason which the Claimant had, but never gave at this stage, was that his partner, who is a manager at the rival store of Asda, had to attend a meeting on that date. They have a daughter. The practice had been, when both parents had to work on a Saturday, that grandparents would come around. They were not available on this day. On 25 July 2003 at about 4pm, the Claimant went to his manager, Mr Swain, and flagged up the possibility that he might be absent the following day. The Tribunal said as follows:

"8. Crucially, in that conversation whilst he informed Mr Swain that his partner was attending a meeting the following day and therefore that he (Mr Truelove) would have to look after their child, he did not mention the arrangements that had been made with his sister or the fact that they had fallen through at the last minute."

8. Arrangements featured in that finding were that the Claimant's sister originally booked could not provide the cover, but that the Claimant was confident that his partner would be able to make alternative arrangements. At about 9pm he phoned his partner, to see what had happened and was told nothing had borne fruit. At 9.40 pm the Claimant spoke to Mr Akhtar. He told him that there was no one to look after his daughter the following day. The Tribunal noted that Mr Akhtar was aware of the conversation that had been held between the Claimant and Mr Swain, and of the need of the partner to attend the meeting.
9. The Tribunal found that there had been unexpected disruption of the arrangements for the care of the child necessitating the absence of the Claimant. Thus, the Claimant qualified under section 57A and the focus of attention turned to section 57(2) which requires a consideration of the reason. The Tribunal decided that the Claimant had not given the reason. The Respondent was entitled to know if there had been such an expected disruption and did not. The Claimant did not suggest that there had been an urgent requirement. In any event, the Tribunal decided that the obligation on the Claimant was to inform the Respondent of the urgent nature of the request. The construction of the word reasonable began as follows:

"19. "reason" in subsection (2) involves a consideration of subsection (1). The reason must indicate to the employer how the right arises and in this case would have involved Mr Truelove informing them that there had been an unexpected disruption to the arrangements."

10. The Tribunal then went on to decide a second issue:

"Even if that were not the case, we would be bound to find that the refusal was not "unreasonable" where the Company did not have sufficient information to determine whether the right was engaged."

Thus, the Tribunal dismissed the Claimant's case. The Tribunal had no doubt that the Claimant was putting forward a case which was markedly different from the one which appeared in his Originating Application. We have not seen his witness statement but we are told by Mr Menzies that the Claimant did not allege that he had used words in the way in which they are expressed in the Originating Application. There is no finding about the Claimant's credibility on this matter, but we have to say that it is surprising that such precise language should appear in an Originating Application and be departed from at the hearing.

11. The Respondent's Notice of Appearance adds as we have said, a little more to the account. For it was contended in that that the Claimant told Mr Swain that his wife had a pre-planned meeting:

"The Shift Manager asked the Claimant whether another person could look after their child and why this had not been mentioned before. The Shift Manager considered that given the timescale that sufficient time was and indeed had been available for the Claimant to make alternative arrangements. The Claimant made no further comment to this."

The Claimant's case

12. In submissions made to us on behalf of the Claimant, Mr Menzies drew attention to the chronology from which it must be inferred that the Respondent was aware that there was a child care issue affecting the Claimant and something had gone wrong, even if he said nothing about child care arrangements. The Respondent is under a duty to investigate: why are you asking for time off? is the kind of question which such a request should generate. Mr Menzies made three submissions: first, that the Employment Tribunal's construction of the word "reason" requires too a high standard and is too restrictive. It is unrealistic. This legislation is designed to protect parents when a very difficult circumstance arises affecting their child. Secondly, the Respondent should be alive to these provisions and there should some albeit informal mutual consideration of the difficulties faced by an individual employee. The Respondent on the Tribunal's test would be entitled to sit back and wait until some magic formula was uttered. Thirdly, there is a mutuality of communication implicit in the inter-relationship between sections 57A (1), 57A (2) and 57B (1), for a decision as to what is unreasonable must involve what considerations the employer had in mind and what enquiry was made. We were reminded of the finding that following the decision in this case by the Respondent, the Claimant was disciplined and has apparently lost entitlement to annual bonus of £250.
13. In response to an argument put by Mr Dale, that even if the EAT were with Mr Menzies on the construction point we would be bound to dismiss the appeal for there was no attack on the auxiliary finding of the Tribunal relating to reasonableness, Mr Menzies did two things. He said it was unnecessary to make an application for permission to amend the Notice of Appeal since the matter was bound up with the substantive finding; but if it were, he would seek permission to include an attack upon the auxiliary finding. Mr Dale resisted such an application.

The Respondent's case

14. On behalf of the Respondent, it is contended that the Claimant had given no reason in the first place for his holiday request on 13 July. The first the Respondent knew was that the Claimant's partner was attending a meeting but it was accepted that the consequence of that was that the Claimant had to look after the child, a reflection of the finding in similar terms by the Employment Tribunal. There was no mention of unforeseen circumstances so that the Respondent never knew. We were reminded in clear terms that the Tribunal has in a very simple case made findings of fact. We were taken to the judgment of the EAT, Mrs Recorder Cox QC and members in the only other case so far as we know on this subject Qua v John Ford Morrison Solicitors [2003] IRLR 184 which indicates that specific questions must be considered by a Tribunal in deciding this issue. That judgment indicates a fairly prescriptive approach to the considerations which must go into a finding on this subject. As to the arguments sought to be adduced by the Claimant in respect of the unreasonable refusal, it was contended that the EAT should refuse an application. Mr Dale was obliged to raise the matter since it was effectively a second line of defence. If it had occurred to him then it must have occurred to the Claimant's legal team. This was not a case fitting the exceptional circumstances for permission to raise anew point, in the long line of authorities approving what is conveniently described as the EAT jurisprudence by Lord Justice Laws in Divine-Bortey v Brent London Borough Council [1998] ICR 886.

The legal principles

15. The legal principles in such a case as this have been first set out by the EAT Qua. The reasonableness invoked by the statute is encapsulated in paragraphs 17 and 19 of this judgment:

"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.

"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."

It is clear that that requires a reasonable degree of information moving from the employee and its examination by the employer. The EAT went on to say that the correct approach was follows:

"25. A tribunal asked to determine this issue should ask themselves the following questions:

(1) Did the Claimant 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 Claimant (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 Claimant had not complied with the requirements of s.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 requisite length of service.

(3) If the Claimant had complied with these requirements then the following 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?"

It is also clear from paragraph 28 that there is some obligation on the employee to disclose:

"28. 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."

Conclusions

16. We prefer the argument on the behalf of the Claimant although we have to say that we appreciate the perspective of the Respondent in dealing as it does with a large workforce and seeking some sort of a surety about requests for time off in urgent circumstances. We have decided that the appeal should be allowed. The sole issue, which remains is consideration of how much material was given by the Claimant to the Respondent before the end of the shift on which he was working. Since the factual background has been accepted to be correct, there was fulfilment of section 57A (1). That means the only question is whether or not the Claimant had told the Respondent the reason for his absence. The combination of the information in the hands of management indicates that he had, in our judgment. Mr Akhtar was aware of the problem which had been communicated by the Claimant to Mr Swain. Knowing that trouble might be brewing during the day on account of a need for child care cover, the position reached an acute level by 9.40 pm. We cannot agree with the Employment Tribunal in its approach to the construction of a reason. For an employee at 9.40 pm to say that there was no one to look after his daughter the following day indicates a clear expression to the employer of a reason why he will absent. The fact that there had been in place what might have appeared to be a satisfactory arrangement indicates that there has suddenly been a change from that arrangement. The Notice of Appearance indicates that Mr Swain considered sufficient time would lapse to make arrangements, indicates that timing was in the mind of Mr Swain and thus Mr Akhtar. In other words the time had come when a crisis had developed and could not be cured without the Claimant leaving to take care his daughter.
17. We accept the submissions made by Mr Menzies that this legislation is designed for operation by parents who are facing a sudden and difficult situation affecting their child. They cannot be expected to communicate in the language of the statute, although as we have hinted above the Claimant in his Originating Application first used the language precisely. What is required is the material suggested by the EAT in Qua. There must be a communication which imparts an understanding into the mind of the Respondent that something has happened to cause what would otherwise be a stable arrangement affecting in this case a child and making it necessary urgently for the employee to leave work. The reasonableness of that request therefore would be examined in accordance with the proposition set out by the EAT in Qua involving consideration of how often this is has happened before, whether or not there is another way of solving the problem, and the business needs of the Respondent. Thus, as a matter of construction we hold that the Employment Tribunal in its careful analysis of the facts imposed too heavy a burden upon a Claimant in these circumstances. On analysis as a matter of fact in this case there was sufficient communication to Mr Akhtar at 9.40 pm, of why was the Claimant was not going to be there the following day.
18. We then, turn to the second part of the finding by the Tribunal, that the Respondent did not have sufficient information to determine whether the statutory right was engaged. The involvement of Mr Swain indicates whether or not there was sufficient time for alternative help to be found. Whilst considering the material which he and Mr Akhtar had, the sole basis upon which the Tribunal under this head found that the Claimant failed was that there was insufficient information to show that it passed the test in section 58A(2). On our analysis of the findings above, there was and so the finding by the Tribunal as to unreasonableness must be set aside. We hold that the Claimant has made out his case. It is thus unnecessary for us, to deal with the alternative proposition that we should allow an application for permission to amend the Notice of Appeal and therefore we do so.
19. We would very much like to thank both of the Claimants before us today, for their careful and helpful presentation of this new subject.
20. The appeal is allowed. The case will be remitted to the same Employment Tribunal to determine compensation unless within 14 days the parties have reached an agreement on it, in which case they should tell the Employment Tribunal that. Any evidence relating to compensation will be served by the Claimant on the Respondent within 14 days from today and by the Respondent in reply 14 days thereafter.