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A recent case from the Employment Appeal Tribunal determines what constitutes "reasonably practicable" when employees notify their employer about taking time off to care for dependents

Employees are entitled to take a reasonable amount of unpaid time off work to take necessary action to deal with particular situations affecting their dependents, including providing assistance where the dependent falls ill or gives birth. If an employer dismisses an employee for exercising or seeking to exercise this right the employee will have been automatically unfairly dismissed and entitled to compensation.

However, this right only applies where the employee tells their employer both the reason for their absence, as soon as it is reasonably practicable to do so, and how long they expect be away from work. If they fail to do this they will not be successful in a claim for automatic unfair dismissal.

But what does "reasonably practicable" mean?

In the recent case of Ellis v Ratcliff Palfinger Limited the Employment Appeal Tribunal ("EAT") considered what reasonably practicable means.

Facts

Mr Ellis was employed by Ratcliff Palfinger Limited ("Ratcliff") and, under the terms of his contract, was required to inform his line manager or leave a message on the company's absence line of any absences due to illness or injury by no later than 30 minutes after he should have started work. Mr Ellis was also required to keep in regular contact, as appropriate given the nature of his illness.

In February 2012 Mr Ellis' partner was heavily pregnant. On 6 February, following concerns about his partner's health, Mr Ellis took her to the hospital on several occasions. Mr Ellis failed to contact Ratcliff to explain the situation and it was not until Mr Ellis' father telephoned Ratcliff in the afternoon that the company was aware of Mr Ellis' situation. The next day Mr Ellis' partner was admitted to hospital to have her baby. At no point on Tuesday 7 February did Mr Ellis contact his employer. Mr Ellis' next contact with Ratcliff was on the 8 February following a text message from the son of Ratcliff's manager.

At the time of the absences in question Mr Ellis was under a final written warning from November 2011 as a result of attendance issues. On 15 February 2012 Mr Ellis was called to a disciplinary hearing and ultimately dismissed.

Mr Ellis brought a claim for automatic unfair dismissal.

Decision of EAT

The EAT dismissed Mr Ellis' claim on the basis that he had failed to notify his employer of his absences as soon as reasonably practicable.

The EAT held that what is reasonably practicable had to be determined by reference to the particular facts. Although Mr Ellis claimed that he was unable to contact his employer as his phone had run out of battery, the EAT considered other methods of communication that Mr Ellis could have used. The EAT held that Mr Ellis could have used a pay phone or asked his father to contact them as he did on the Monday and, although they appreciated that Mr Ellis' partner was in hospital to give birth, it was held that it would have been reasonable to step out into the corridor to make a short phone call.

Lessons to be learnt

This case sets out the extent of action required when attempting to contact an employer as soon as reasonably practicable. An employee needs to think of and use any means at their disposal to contact their employer, even if distracted by impending childbirth. If employees finds themselves in difficulty they must find a means of putting their employer in the picture. If they fail to contact them this case demonstrates that an employer would be well within their rights to start a disciplinary process.

However, employers should note that the decision to dismiss in this case followed a final written warning. Even if it is clear that your employee failed to notify you as soon as reasonably practicable, if you dismiss them and there has been no previous warnings regarding attendance you may risk facing a claim for unfair dismissal (albeit not automatic).