Don't Call me Baby....
This week the EAT has ruled on a case concerning the right to take time off for dependants - not something we see going to Tribunal very often so it is always helpful to get judicial guidance when a case like this is heard.
The right to take time off for dependants is a statutory right to unpaid leave for a reasonable amount of time off to look after dependants, usually used in emergency situations.
Mr Ellis had a live final written warning on his file for previous absences. He had been warned that any future failure to work his required hours could lead to dismissal.
Mr Ellis' partner was heavily pregnant. One Sunday, there had been concerns about the health of Mr Ellis' partner and the baby and so, on the Monday, Mr Ellis took his partner to the hospital several times. However, he failed to let his employer know. The first his employer knew about the reason for his absence was when it received a phone call from Mr Ellis' father on Monday afternoon.
The following day Mr Ellis' partner was admitted to hospital to have her baby. Mr Ellis did not attend work and neither did he inform his employer of this fact. In fact, Mr Ellis did not telephone his employer himself until Wednesday evening after having received a text from the Company asking him to make contact urgently. Mr Ellis left a voice message on Wednesday night saying that he would not be in work on Thursday.
A few days later Mr Ellis was invited to a disciplinary hearing in light of his failure to report his absence. Mr Ellis said that his mobile phone battery had died and he had called his father from the hospital payphone because he did not know his employer's telephone number. That was why, he alleged, his father had telephoned on the Monday afternoon.
Having taken into account the live written warning for previous absence, as well as these recent occasions where Mr Ellis had failed to inform the Company of his absence and the reason why, the Company dismissed him and paid him in lieu of notice.
Mr Ellis brought a claim on the grounds that he had been automatically unfairly dismissed for seeking to exercise his right to time off for dependants. An employment judge dismissed his claim stating that he had not told his employer the reason for his absence as soon as reasonably possible. On appeal to the EAT, the EAT agreed with the employment judge. It was found unacceptable that the first direct contact Mr Ellis made with his employer was on Wednesday evening, not having attended the workplace since the weekend.
The EAT noted that what timeframe is "reasonably practicable" will depend on the facts. This case highlights the importance of employee's appreciating the requirement to make contact where they need to exercise the right to take time off for dependants and to ensure that they inform the employer of the reasons why, even where there is an emergency.
October 1st will see some new changes in Employment Law. There are two primary changes which are most likely to affect you:
- An increase to the national minimum wage. The rates will increase for all age groups and for those aged 21 or over, it will rise to £6.50.
- Employees and agency workers will have a right to take unpaid time off to accompany their partner (someone with whom they have a "qualifying relationship") to up to two antenatal classes.
Shared Parental Leave
You are probably all aware now of the upcoming change with regard to shared parental leave. There are lots of criteria and eligibility tests for different parts of it and it can become quite complicated! This week, BIS has published some guidance which is intended to assist employers when they are producing new policies on shared parental leave and pay.
We will be covering this topic in some detail at our seminar on 14 November 2014 so do book a place to come and find out more and ensure you are prepared for the change.
To book your place contact Louise Hill, either by email - email@example.com or telephone 0116 2391717
Latest Brief - Week Ending 12 September 2014
A sensible approach to paternity pay?
An employment tribunal has held that an employer did not discriminate by paying only the statutory rate of additional paternity pay to a male employee on additional paternity leave (APL) when a female employee on maternity leave would have been entitled to full basic pay under the employer's enhanced maternity scheme. There was no direct discrimination because the appropriate comparator was a woman who had also taken APL, who would have been treated in the same way. Although the policy was indirectly discriminatory, it was objectively justified by the need to recruit and retain women in a male-dominated workforce.
Whilst this decision is not binding on other tribunals, it is a useful indication of how this issue may be approached should further cases be brought by disgruntled fathers.
Unpaid time off for ante-natal appointments
BIS has issued guidance on the new right for employees and qualifying agency workers to attend their partners' ante natal appointments, which comes into force on 1 October 2014.
It applies to the pregnant woman's husband, civil partner or partner (including a same-sex partner), the father or parent of a pregnant woman's child, and intended parents in a surrogacy situation who meet certain conditions. The right is to take unpaid leave for one or two appointments capped at 6.5 hours per appointment.
A further new right to paid and unpaid time off work for adopters to attend meetings in advance of a child being placed with them for adoption will come into force on 5 April 2015.
German ban on out of hours emails?
The German employment minister has commissioned a report on the possibility of legislation to restrict employers from contacting employees by email outside working hours. A report by the German Pension Insurance Union, which showed a rise in the number of German workers taking early retirement due to stress, has led to suggestions that there is a link between employees' constant availability and mental illness.
You can't wear that!
ACAS has published a guidance note for employers on the use of dress codes.