AN UNEXPECTED TWIST

Royal Bank of Scotland v Harrison

The Employment Rights Act 1996 gives employees the right to time off if something “unexpected” happens to their arrangements for caring for a dependant. In Royal Bank of Scotland v Harrison, the Employment Appeal Tribunal (EAT) said that “unexpected” can include a situation in which the employee had two weeks’ notice of a change to their childcare arrangements.

Basic facts

On 8 December 2006 Mrs Harrison’s childminder told her that she would not be able to work on 22 December. As she was unable to find anyone else, Mrs Harrison asked her employer on 13 December for the day off under section 57A(1)(d) of the Employment Rights Act 1996 (ERA).

This states that employees are entitled to a reasonable amount of time off to “take action which is necessary … because of the unexpected disruption or termination of arrangements for the care of a dependant”.

RBS waited until 20 December to tell her that they could not find cover for her on that day and that if she failed to turn up, it would be treated as unauthorised absence. As she had no alternative, she did not come to work and received a verbal warning on 2 February 2007 which she appealed unsuccessfully.

She brought a claim alleging that she had been subject to a detriment for exercising her rights under s.48 of the ERA 1996. RBS argued that as the disruption was not “unexpected”, the provision did not apply to her.

Tribunal decision

The tribunal found in favour of Mrs Harrison on the basis that although she had had two weeks’ warning that her childminder would not be available, the disruption was still “unexpected”.

It accepted that if she “had been told in July that cover would not be available in December, she could not say that it was unexpected. However, at this point, 8 December, exercising our common sense and industrial experience, we find the unavailability of a child minder was unexpected.”

EAT decision

And the EAT agreed. It said that tribunals have to decide two issues – whether the action was “necessary” and whether the disruption was “unexpected”.

In trying to decide the first issue, it said that tribunals can take into account the actual amount of time between the employee “becoming aware of the risk of the relevant disruption and that risk becoming fact”.

Not surprisingly, perhaps, the EAT made clear that the greater the time that an employee has “to make alternative arrangements, the less likely it will be that necessity will be established”. It concluded that tribunals have to decide each case on the basis of the facts before them, taking into account such factors as, “the nature of the disruption, the availability of alternatives, finance and time”.

As to whether the disruption can be said to be “unexpected” the EAT said that this did not include a time element. It is therefore “only unexpected (if it is unexpected at all) at the moment when or the moment before the employee learns of what is about to happen;” The EAT made it clear that the words “unexpected” and “necessary”, were ordinary words to be construed according to their natural meaning.