Mr F Scattino v Griffin Catering Services Ltd and Fuller Smith and Turner plc: 6007179/2025
JUDGMENT
[1]The claims against the Second Respondent are dismissed on withdrawal by the Claimant[2]By consent: By 16/12/25, the First Respondent shall pay the Claimant £220 (less any proper deductions for tax and national insurance contributions etc) as one week’s notice pay due on 2/12/24 and issue him with an amended payslip and P45.[3]Not by consent: the claim of unfair dismissal against the First Respondent fails and is dismissed Reasons for Paragraph 3 of the judgment[5]I heard evidence from the First Respondent’s witnesses Mr J Koops (General Manager and investigator) and Ms R Welke (Deputy Manager and decision maker); and then from the Claimant and his partner Ms J Almaraz. The documents were in a bundle of 265 pages.[6]The Claimant was employed on a zero-hours contract by the First Respondent working over weekends as a waiter in the Windjammer pub the Royal Wharf in East London from 19/7/24 to 29/11/24.[7]On 2/3/25 he presented an ET1 claiming unfair dismissal and notice pay. The notice pay claim was conceded at the beginning of the hearing. It was also accepted that the First Respondent rather than the Second Respondent had been his employer.[8]The Claimant accepted that as he did not have two years’ service, he could not claim ordinary unfair dismissal. Rather he claimed automatic unfair dismissal on the basis that he had been dismissed for taking time off under section 57A ERA 1996. Relevant law[9]Section 57A of the Employment Rights Act 1996, provides as follows: Time off for dependants. (1)An employee is entitled to be permitted by his employer to take a reasonable amount of time off during the employee’s working hours in order to take action which is necessary— (a)to provide assistance on an occasion when a dependant falls ill, gives birth or is injured or assaulted, (b)to make arrangements for the provision of care for a dependant who is ill or injured, (c)in consequence of the death of a dependant, (d)because of the unexpected disruption or termination of arrangements for the care of a dependant, or (e)to deal with an incident which involves a child of the employee and which occurs unexpectedly in a period during which an educational establishment which the child attends is responsible for him. (2)Subsection (1) does not apply unless the employee—(a) tells his employer the reason for his absence as soon as reasonably practicable, and(b) except where paragraph (a) cannot be complied with until after the employee has returned to work, tells his employer for how long he expects to be absent. (3)Subject to subsections (4) and (5), for the purposes of this section “ dependant ” means, in relation to an employee— (a)a spouse or civil partner , (b)a child, (c)a parent, (d)a person who lives in the same household as the employee, otherwise than by reason of being his employee, tenant, lodger or boarder. (4)For the purposes of subsection (1)(a) or (b) “ dependant ” includes, in addition to the persons mentioned in subsection (3), any person who reasonably relies on the employee— (a)for assistance on an occasion when the person falls ill or is injured or assaulted, or (b)to make arrangements for the provision of care in the event of illness or injury. (5)For the purposes of subsection (1)(d) “ dependant ” includes, in addition to the persons mentioned in subsection (3), any person who reasonably relies on the employee to make arrangements for the provision of care. (6)A reference in this section to illness or injury includes a reference to mental illness or injury.[10]Section 99 ERA 1996 includes the following: Leave for family reasons.(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if— (a) the reason or principal reason for the dismissal is of a prescribed kind, or (b) the dismissal takes place in prescribed circumstances.(2) In this section “ prescribed ” means prescribed by regulations made by the Secretary of State.(3) A reason or set of circumstances prescribed under this section must relate to— ….. (c) time off under section 57A[11]Regulation 20 of the The Maternity and Parental Leave etc. Regulations 1999 includes the following : 20.—(1) An employee who is dismissed is entitled under section 99 of the 1996 Act to be regarded for the purposes of Part X of that Act as unfairly dismissed if— (a)the reason or principal reason for the dismissal is of a kind specified in paragraph (3), … 3) The kinds of reason referred to in paragraphs (1) …are reasons connected with— …(iii) time off under section 57A of the 1996 Act;[12]There is no requirement for the notice in section 57A(2)(a) to be in writing. The employee does, however, need to give their employer sufficient information to enable it to determine that their time off is pursuant to the statutory right to time off to care for a dependant.[13]In Qua v John Morrison Solicitors [2003] IRLR 184, the EAT stated that the right to time off to "provide assistance" under section 57A(1)(a) does not give employees the right to take time off to provide personal care for a sick dependant, "beyond the reasonable amount necessary to enable them to deal with the immediate crisis".[14]The EAT also provided some useful guidance on determining what is a reasonable amount of time off work. In particular, The ERA 1996 does not limit the amount of time an employee is entitled to take off, and therefore it is not possible to specify the maximum period of time which is reasonable in any particular circumstances. However, "it may be that, in the vast majority of cases, no more than a few hours or, at most, one or possibly two days would be regarded as reasonable to deal with the particular problem which has arisen".[15]What is a reasonable amount of time off will depend upon the nature of the incident and the employee's individual circumstances. Findings of fact[16]The Respondent has in place a policy on Sickness and Absence Management which sets out how employees should report their lateness or absences.[17]It was previously thought by Mr Koops and Ms Welke that the Claimant was late attending work on 3/8/24. However it was accepted during the ET Hearing that in fact he had been authorised to arrive at work at 4pm that day, and that he arrived at 3.56, so he was not late.[18]On 4 August 2024 the Claimant did not attend work, and did not follow the absence reporting procedure. The Respondent called multiple times, but did not receive a response from the Claimant, until the 6th August 2024, where he explained his absence was due to being involved in an incident and spending time at the police station.[19]On 25 August 2024 the Claimant did not attend work and did not follow the correct absence reporting procedure. The Claimant was scheduled to start work 12pm, and messaged the Respondent at 10:28am about train disruptions due to engineering works and confirming that he could not come in, he did not attend work.[20]On 26 August 2024 the Claimant was 30 minutes late for work and did not follow the correct procedure for reporting lateness.[21]The Claimant confirmed during cross-examination that rotas were available 2 weeks prior, and he confirmed that he had read and signed the “House Rules” which set out that lateness and absenteeism would not be tolerated.[22]Although during cross-examination he was able to give reasons for the absenteeism and lateness on 4 August 2024, 25 August 2024 and 26 August 2024 he was unable to explain why he had not followed process in reporting these lateness or absences.[23]On 26 August 2024 Ms Welke held a “4 week performance excellence review” with the Claimant. It was noted that “(the Claimant) will work on his communication by giving the required notice should he be absent or late”.[24]On 6 September 2024, the Claimant’s partner Ms Almaraz had an accident impacting her leg, resulting in her being admitted to hospital for a few days before being released into the Claimant’s care. This turned out to be a serious injury which caused and continues to cause immobility, pain, infection, depression and risk of thrombosis. It placed the Claimant and Ms Almaraz in a difficult personal situation, because neither had any family support in the UK, they could not access or afford to pay for private ongoing care and attendance for Ms Almaraz, and the Claimant needed to care for her but at the same time needed to carry on working to support them both financially.[25]The Claimant did not attend work on 7 September 2024, but he did attend the pub to explain the situation to Mr Koops. The Respondent rightly accepts that the Claimant’s absence on 7th September meets the requirements of section 57A(1)(a)[26]On 8 September 2024 the Claimant did not attend work, he was contacted by Mr Koops to see where he was, and he then explained he was still dealing with Ms Almaraz following the accident. Mr Koops gave evidence, and I accept, that he had expected the Claimant to attend work or confirm he needed more time, the Claimant had not done this. The Claimant then confirmed he would be back at work the following weekend.[27]On 14 September 2024 the Claimant was late by 24 minutes despite informing the Respondent he would be 10 minutes late[28]On 21 September 2024 he was late by 18 minutes, despite having agreed a later start time with the Respondent.[29]On 29 September 2024 he was late by 45 minutes[30]On 6 October 2024 he did not attend work, and he contacted Ms Welke (who was not working that day) at 10:30am. Ms Welke advised the Claimant to contact the pub directly, which he did an hour later at 11.30 am. His shift was due to start at 12noon.[31]On 26 October 2024 the Claimant requested a 30 minute break to care for Ms Almaraz which was agreed, but he was gone for 88 minutes.[32]On 2 November 2024 he was late by 25 minutes[33]On 16 November 2024 he did not attend work – despite checking start times with Ms Welkes the day before. He was contacted by Mr Koops and he responded two hours later, citing that his absence was due to a personal issue. Mr Koops queried this the following day, but the Claimant did not provide any details, or refer to Ms Almaraz.[34]The Claimant gave evidence that his absences and lateness following Ms Almaraz’s accident on 6 September 2024 were due to him caring for her. When asked he confirmed that caring included: shopping, cleaning, bathing, preparing food, assisting her use the toilet.[35]He said that some of the noted absences had been caused by his accompanying Ms Almaraz to hospital NHS appointments. Apart from the absences on 7th and 8th September there was no documentary evidence of this.[36]I asked the Claimant whether he had any documentary or other specific evidence that his absences or lateness was attributable to his searching for a care-provider for Ms Almaraz, but he did not produce any.[37]Mr Koops investigated all of the above dates and referred them for disciplinary action, and Ms Welke relied on all of them in dismissing the Claimant in November 2024 for failure to follow the company sickness policy and for repeated lateness. Specifically: “Repeatedly not showing up for work without giving notice, and Repeated lateness”[38]In his oral evidence Mr Koops explained, and I accept, that the main trigger or final straw for his decision to start investigating the Claimant in November was the unauthorised and unexplained absence on 16/11/24, and that the situation was causing operational problems for the business Conclusion[39]In order for the Claimant to be successful in his UD claim he must show that the reason, or principal reason for his dismissal was due to his taking of leave under section 57A.[40]The First Respondent relied on all the actual or claimed specific absences/lateness mentioned above when dismissing the Claimant.[41]One of those incidents of claimed lateness (on 3/8/24) turned out not to be a case of actual lateness and relying on it was a mistake.[42]The non-attendance and lateness on 25 and 26/8/24 predated Ms Almaraz’s accident and plainly was not time off under section 57A.[43]The Respondent rightly accepts that Ms Almaraz, meets the criteria of section 57A(3) 1996 and was as a dependant of the Claimant for purposes of that section.[44]It was accepted that the absence on 7/9/24 was on or part of the occasion of Ms Almaraz’s injury and that the Claimant gave an explanation as soon as he could. That was time off under section 57A.[45]On 8/9/24 the contemporary text messages suggest and I find that that the Claimant failed to communicate or give advance notice about his absence to the Respondent. Even if 8/9/24 can be treated as part of the occasion of the injury, I do not find that the Claimant complied with the notice requirements in section 57A(2) so it was not covered by section 57A.[46]I do not accept the Claimant’s submission that all the absences/lateness after 8/9/24 were all part of the occasion of the injury and were thus covered by section 57(1)(A), because after 8/9/24, the occasion had ended.[47]In relation to the post 8/9/24 incidents, the Claimant provided no evidence and I do not find that it caused by him making arrangements for the provision of care (section 57A(1)(b)), and in any event the Claimant failed to inform the Respondent that this was the cause or reason for the absence or non-attendance and therefore he did not meet the requirements of section 57A(2).[48]The Claimant was dismissed for a pattern of absences/lateness and poor or inadequate communication, especially a lack of advance notification which started before but which continued after Ms Almaraz’s accident.[49]Only one of the numerous incidents of absence (7/9/24) was time off covered by section 57A.[50]The absence on 7/9/24 was one or the reasons but was a minor background reason constituting part of a pattern of absence/lateness leading up to the terminating decisions taken in November.[51]The main reason for the dismissal was the fact that the Claimant failed to comply with the reasonable requirements of the Respondent that he give it reasonable notice or warning so it could try to get cover.[52]The Claimant made a number of points and submissions about the claimed general unfairness of the procedure - for example that the First Respondent failed to explain to him or apply its policies properly, that it had mistakenly relied on 3/8/24 as an incident of lateness, that he had not been asked for or allowed to present his evidence at the disciplinary stage, that he had not had enough prior warning of the disciplinary hearing (which he declined to attend) and that the decision to dismiss him had been made by Mr Koops before the disciplinary hearing, as shown by the fact that Mr Koops invited the Claimant to resign as an alternative to going down the disciplinary route. None of these matters are relevant in a claim for automatic unfair dismissal, which does not depend on the un/fairness of the procedure, but rather on whether the statutory provisions creating the right are satisfied.[53]Ms Almaraz during her evidence complained that the Respondent and its lawyers had no right to ask questions about her personal matters and had not acted with sensitivity or humanity etc. I record that I have seen no evidence to support these complaints and that the Respondent’s solicitor presented his client’s case in a reasonable fashion.[54]The Section 57A time-off was not the sole reason or principal reason for the dismissal, nor was this a case in which the sole or principal reason was connected to such time off.[55]Hence, although sympathy is due to the Claimant and Ms Almaraz for the nasty accident which has caused and which continues to cause them significant problems, the claim for unfair dismissal is not made out and it fails. J S Burns