A dependant dismissal

Although employees can take time off to attend to practical matters after the death of a dependant, they do not have the right to time off to deal with their grief.

At least that is what the employment appeal tribunal (EAT) has just decided in Forster v Cartwright Black Solicitors (IDS 765).

What were the basic facts?

Mrs Forster started work for Cartwright Black on 5 August 2002. She had three days' sick leave in October and twelve days' paid bereavement leave in January 2003, following the death of her father. In May she had two days' sick leave, as well as five days' bereavement leave when her mother died.

She then took a further week's sick leave, which was certified by her doctor as a 'bereavement reaction'. Mrs Forster sent in another sick note for two more weeks, giving the same reason, from 10 June 2003.

Her employers then asked her to attend a meeting, at which she was dismissed. This was followed up by a letter, dated 16 June, stating that the reason for her dismissal was generally because of her absence record, and specifically because of her latest period of absence.

Because she had been employed for less than a year, Mrs Forster could not claim ordinary unfair dismissal. Instead, she alleged that she had been unfairly dismissed because she had exercised her rights under section 57A(1)(c) of the Employment Rights Act 1996 (see box below).

Unfortunately, the tribunal disagreed and said that the time she had taken off following her mother's death did not fall within the scope of the legislation. Mrs Forster appealed.

What did Mrs Forster argue?

Mrs Forster argued that "to take action which is necessary" should include medical advice not to work. She argued that the difference in the wording in the legislation was significant. Sub-paragraphs 1(a) and 1(b) talk about 'providing assistance' and 'making arrangements', whereas subsection 1(c) uses the words 'in consequence of'.

She said that the legislation should be interpreted broadly to give effect to its aims, and should not be restricted to the actual funeral arrangements, but should include time to come to terms with the emotions caused by the death of both her parents in the space of four months.

What did the EAT decide?

The EAT accepted that there was a difference in the wording in section 57A(1)(c) and the other subsections, in that the others were more specific, but said that was simply to reflect the greater range of arrangements that would be required after a bereavement.

It decided that did not mean that the subparagraph was restricted to the making of the actual funeral arrangements, but would include registering the death and, if there was a will, applying for probate and being interviewed by the Probate Office.

Section 57A(1) provides for dependant leave necessary to deal with an emergency. In relation to section 57A(1)(c) the trigger is that the time off should be taken in order to take necessary action in consequence of the death.

The EAT concluded that although "the death of a dependant will produce sadness, bereavement and unhappiness, the section was not intended to introduce the right to compassionate leave as a result of a bereavement". It therefore dismissed Mrs Forster's appeal.