Under section 57A of the Employment Rights Act 1996 (ERA), employees can take a reasonable amount of time off work if (for instance) their partner gives birth, as long as they tell their employer “as soon as reasonably practicable”. In Ellis v Ratcliff Palfinger Ltd, the Employment Appeal Tribunal (EAT) held that the key issue for the tribunal to decide was the test of “reasonable practicability”.
Mr Ellis’s partner was heavily pregnant and due to give birth on Monday 6 February 2012. After concerns about her health on Sunday, he went with her to hospital on Monday but did not tell his employers why he was not at work. Instead his father phoned that afternoon to explain what was happening.
He did not contact work the next day either but again went with his partner to hospital when she gave birth. After receiving a text message on Wednesday telling him to get in contact urgently with the office, he spoke to his manager and left a message on his employer’s answerphone late on Wednesday evening saying he would not be in the next day. He did not turn up for work until the following Monday.
Mr Ellis, who had received a final warning in November 2011, was asked to attend a disciplinary hearing on 15 February 2012. He explained that his phone had run out of battery power and, as he could not remember his employer’s number, he rang his father on the hospital payphone to ask him to get in touch. His employer decided that he had “failed to make reasonable efforts” to inform them that he would not be at work that week and dismissed him. He claimed automatic unfair dismissal under section 57A.
Section 57A Employment Rights Act gives employees the right to take a reasonable amount of time off during working hours if a dependant gives birth as long as the employee tells their employer the reason for their absence as soon as reasonably practicable, and how long they expect to be absent.
The tribunal found that section 57A did not apply as Mr Ellis could easily have recharged his mobile in order to phone his employer. Even if his own phone would not work, he could have borrowed someone else’s mobile. In any event, as he had access to the pay phone in the hospital, there was no reason why he could not have used it to ring his employer on Tuesday and/or Wednesday.
The judge concluded that Mr Ellis did not tell his employer the reason for his absence as soon as reasonably practicable and the principal reason for his dismissal was therefore his own misconduct.
The EAT dismissed the appeal, holding that as the judge had clearly considered the test of reasonable practicability when deciding whether section 57A(2) ERA applied, he was entitled to conclude that it did not.