Asserting a statutory right

A Tribunal has awarded £8,000 to a claimant after finding they were dismissed for asserting a statutory right.  Janey Rankin, Trainee Solicitor summarises the facts of this case and outlines some key reminders for employers on the risks of breaching statutory rules.

Facts

In June 2019 an employee brought a claim against his former employer, alleging that his dismissal was for an automatically unfair reason. In this case – for asserting a statutory right to take time off for dependants.

The claimant was employed by Stax Converting Limited from February 2018 until his dismissal in April 2019. He was employed as a Machine Operator. On Friday 5 October 2018 the claimant’s pregnant partner fell unwell and had to attend an emergency hospital appointment on Monday 8 October.  The emergent nature of the appointment resulted in child care issues for the claimant; given that his partner had been due to take their six year old child to school on the same day. He also wanted to be able to support his partner at the appointment.

The timeline was as such:

Friday October 5	The claimant made a request via his employer’s HR system to take ‘holiday’ on Monday 8 October.   The claimant’s manager refused his request on the basis that he had not given the required one week’s notice. The claimant then asked if he could swap holiday that he had booked for 10 October for 8 October but this was also refused.
Saturday 6 October	The claimant repeated his efforts to get time off via the HR system stating “no child care as hospital appointment for partner as she is unwell.” The claimant got no response as the online system was not checked by the employer over the weekend.
Monday 8 October	On the morning of the appointment claimant telephoned the employer to let them know he would not be attending his shift that day.

When the claimant returned to work on Tuesday 9 October he was invited to a disciplinary hearing by his line manager for failing to follow procedures with regards to making a holiday request, unauthorised absence, and insubordination. Following the disciplinary hearing the employer sent the claimant a letter confirming that the matter would not be pursued any further.

In the remaining six months of working at the factory the claimant took various days holiday to attend antenatal appointments and immediately before his dismissal he requested one month’s paternity leave. Following this request, the claimant’s employer terminated his employment for failing to comply with an “amalgamation” of company procedures. The termination letter alluded to the failure to request holiday leave (for the incident back in October) and for also smoking and using a mobile phone on the premises.

The claimant’s subsequent appeal against his dismissal was refused and so he proceeded to bring a claim for automatic unfair dismissal on the grounds of taking time off for dependent leave. Unlike an unfair dismissal claim, to bring a claim for an automatically unfair dismissal the employee does not require to prove 2 years’ continuous service.

The Statutory right to take time off for dependent leave

By law, an employee is permitted to take a reasonable amount of time off to deal with an emergency involving a dependent. A dependent could mean a spouse, partner, child, grandchild, parent or someone who depends on the employee for care. An employer does not need to pay the employee for this leave.

Time cannot be taken for appointments or other instances which were already known by the employee. The time taken must be for one of the following:

• Illness, injury or assault
• Unexpected labour
• Disruption to care arrangements
• Leave for when a child is involved in an incident at school

The employee must inform their employee as soon as possible that they need to take leave.

An employer must not:

• treat an employee unfairly for taking time off, for example refusing you training or promotion
• dismiss an employee or select them for redundancy because they asked for time off for a dependant
• refuse an employee reasonable time off

Judgment

The Tribunal found in favour of the claimant. Dismissing an employee because they have taken time off work to care for a dependant is an automatically unfair dismissal under section 57A of the Employment Rights Act 1996 which means the employee does not need the qualifying period of service that they would need to have to bring an ordinary unfair dismissal claim. Pursuant to and in compliance with section 57A, the Claimant requested to take leave as soon as practicable and only requested a reasonable day’s leave to attend the appointment.

There was no evidence of any disciplinary sanctions regarding the smoking and mobile phone use on the premises. This  influenced the Tribunal to find that the employer’s primary reason for the dismissal was the claimant’s assertion of a statutory right in seeking to attend an emergency appointment. 

Points to note  

Employers need to be aware of the prescribed reasons for dismissal which are automatically unfair, despite length of service. These include dismissal by reason of: pregnancy; childbirth or maternity; time off to accompany to an ante-natal appointment; paid or unpaid time off to attend an adoption appointment; ordinary, compulsory or additional maternity leave; ordinary or additional adoption leave; shared parental leave; parental leave; paternity leave; parental bereavement leave, and time off for dependants.

Employers should also be aware of the risks in not following a proper disciplinary process – even if the employee has less than 2 years’ service. Like in this case, the courts used the absence of any disciplinary sanction relating to the smoking and mobile phone usage to focus entirely on the unfair reason.

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