Family friendly or just another paper right thompsons trade union solicitors brain anoxia

Qua v john ford morrison solicitors [2003] IRLR 184 (EAT)

Darlington v alders of croydon (unreported ET. C/no. 2304217/01)

The employment rights act 1996 at section 57A gives employees the right to take unpaid time off work to care for or make arrangements in respect of a dependant.

Working parents and employees caring for dependents breathed a sigh of relief when this legislation was introduced. It was hoped to be another thread in the web of support to help employees balance their work and home commitments. How real is this right and how are tribunals interpreting it?

There is good and bad news from the cases so far.

In the recent case qua v john ford morrison solicitors these issues were considered by the employment appeal tribunal.Brain anoxia

Ms qua, a single mother, worked as a legal secretary from the 5 january 2000 until she was dismissed just over 10 months later on 27 october 2000. The employer stated she had been dismissed because she had been absent without authorisation on a number of occasions. She claimed she had been automatically unfairly dismissed for exercising her right under section 57A of the ERA to take time off to care for a dependant. She said the majority of her absences had occurred owing to ongoing medical problems that her son had been suffering. She argued she had always informed the employer of the reason for her absence and that on each occasion she had taken a reasonable amount of time off work to deal with the problem.Brain anoxia

Ms qua lost her case at the employment tribunal on a number of grounds. The tribunal accepted that she had taken time away from work on 17 days because of her son’s medical problem. On 14 of those days she had not attended work at all. The tribunal accepted on each occasion her son had been too unwell to attend school. However the tribunal said that on a number of occasions ms qua had failed to inform the employer of the reason for her absence. They also said that she had failed to update her employer daily on her situation when she had been away for more than one day. The tribunal concluded that her failure to operate this procedure properly meant that her right to take time off under the act had not arisen at all and she had not been automatically unfairly dismissed.Brain anoxia

The tribunal then considered whether ms qua had taken reasonable time off , taking action that was necessary to perform a task listed in section 57A. It noted that the act refers to the care of a dependant who falls ill not one who is ill. In its view it said that an employee was not necessarily entitled to take time off to provide care personally for an ill dependant but rather to take time off to make arrangements for such care to be provided by others. Finally the tribunal found that the amount of time ms qua had taken off had not been reasonable. When reaching this decision it took into account the fact the employer was a small firm and that ms. Qua’s absences had caused disruption and inconvenience.Brain anoxia

This was clearly an extremely disappointing decision. Ms qua went on to appeal.

The good news is that the EAT have submitted this case back to a freshly constituted tribunal. It specifically provided guidance as to the meaning of the terms necessary and reasonable in section 57A. In its view when deciding whether an action is necessary, factors to be taken into account include the nature of the incident which has occurred, the relationship between the employee and the dependant in question, and how far anyone else can provide assistance.

When deciding what constitutes a reasonable amount of time off, the circumstances of the individual employee should be taken into account. By contrast, the disruption or inconvenience caused to the employer is not relevant.Brain anoxia

The EAT then considered the specific right to take time off to provide assistance when a dependant falls ill upon which ms qua was relying. Here the interpretation of the EAT was less positive. It stated that this sub-section is concerned with unexpected events and does not entitle employees to take time off beyond a reasonable amount necessary to deal with the immediate crisis as it does not entitle an employee to provide personally long term care for a sick child. The EAT noted that a parent who has attained one year’s service and wishes to care for a sick child personally is entitled under section 76 of the ERA and the maternity and parental leave regulations, 1999 to take parental leave. In order to do so however, it fails to point out that this right should normally be exercised before a child’s fifth birthday.Brain anoxia the age of ms qua’s son is not given but there is reference to his absence from school and therefore it is highly likely that unless he was a disabled child, ms. Qua would not have had the benefit of this right even if she did have the sufficient service, which she did not.

The EAT continued to give further guidance which restricts the applicability of the right. Where a child is suffering from a recurring illness it is said that the number, length and dates of the previous absences should be taken into account when determining whether further time off is reasonable and necessary. It also stated that when a recurring medical condition causes a child to become unwell, such a child would not have fallen ill unexpectedly.Brain anoxia

Finally the EAT helpfully stated that the question of when an employee will be entitled to take time off under section 57A to care for a child suffering from a long term or recurring illness would be determined with reference to the facts of the individual case.

So although this case provides us with some useful guidance it shows that the EAT is still construing the legislation in a restrictive manner.

By contrast, a more positive note was sounded in an unreported employment tribunal case, darlington v alders of croydon. The facts in that case were that another single mother with less than one year’s service was sacked when she sought five weeks’ unpaid leave in accordance with the regulations following an accident where her daughter suffered a fractured skull.Brain anoxia the hospital advised that although the applicant’s daughter was allowed home, she could not return to school until the fracture was mended and extreme care must be taken to prevent any risk of knocks or bumps during the recovery process.

The applicant informed her employer of the circumstances but despite this was sacked.

The tribunal in this case considered the horrific circumstances of the daughter’s accident, noted the fact the applicant was a single parent with two other children and no family assistance, and was prepared to find that the time sought by the applicant was reasonable within the meaning of 57A.

Let us all hope for the sake of effective implementation of family friendly policies that tribunals will now consider the guidelines issued by the EAT and look at the facts in individual cases but be prepared to come to decisions such as the tribunal in the darlington case rather than the original tribunal in the case concerning ms qua.Brain anoxia