MACCULLOCH & WALLIS LTD v MISS O MOORE [2003] UKEAT 51_02_1102

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2003] UKEAT 51_02_1102

Case No Appeal No. EAT/51/02

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MACCULLOCH & WALLIS LTDAPPELLANT

MISS O MOORERESPONDENT

Before

Mr Justice Burton

Date 11 February 2003

[1]APPEARANCES For the Appellant MR J Y BONAS (Representative) Instructed By: MacCulloch & Wallis Limited 25-26 Dering Street London W1S 1AT For the Respondent MISS C LEWIS (of Counsel) Instructed By: Messrs Fisher Meredith Solicitors 2 Binfield Road Stockwell London SW4 6TA MR JUSTICE BURTON (PRESIDENT): This is the hearing of an appeal by MacCulloch & Wallis Ltd, who were the employers of Miss Moore, the Applicant before the Employment Tribunal at London Central, against the conclusion by that Employment Tribunal that Miss Moore was unfairly dismissed.

[2]The basis of the finding that she was unfairly dismissed could not be, on the particular facts of this case, founded upon what can be called "ordinary" unfair dismissal, because she did not have the necessary qualification period; she had only been employed from 23 May 2000 to 22 January 2001. She put her case on what is colloquially called "automatic unfair dismissal", namely that she had been dismissed, or indeed it can be constructively dismissed, but in this case "dismissed", arising out of her having sought to take time off under Section 5A of the Employment Rights Act 1996 , as she asserted; and her allegation was that she was unfairly dismissed, and that the Appellant had unreasonably refused her time off, pursuant to that Section.

[3]The employer was represented below and also before us by Mr Bonas, its Managing Director, who did not play any material part in the factual history, but has acted as their advocate, and extremely ably too, so far as his appearance before this Tribunal is concerned, and I think he had similar plaudits when he appeared on the preliminary hearing at which permission was given for this appeal to go ahead. He has put the case clearly, and made all appropriate concessions for the difficult factual circumstances so far as his Company is concerned, to which we will refer.

[4]Miss Lewis represented Miss Moore on the successful application below and has again appeared before us, and also very ably represented her client.

[5]Before we turn to analysis and conclusion, we should set out what appear to us to be three important background factors.

[6]First, it is quite apparent that the Employment Tribunal formed a very dim view of the Appellants and, in particular, of Mrs Connolly. They plainly took the view that she was, to say the least of it, hard-hearted in her attitude towards the Respondent and, understandably, and as the industrial jury charged with the findings of fact, naturally, formed an antipathy, not based in any way on prejudice, but based upon their conclusions as to the facts towards her conduct.

[7]Secondly, and for the reverse conclusions, they understandably formed a great deal of sympathy for the Respondent, as indeed we have. The Respondent was doing her duty by her family, as will appear, in leaving her employment and, as it turns out, losing her employment in order to go and spend precious time with her elderly father in Ireland, just before he died.

[8]The fact that the Tribunal had such sympathy led them to make findings of fact favourable towards her but, of course, it cannot justify a finding which is not properly based in law, nor can it justify us in upholding such a finding, if we conclude that it is not, notwithstanding the sympathy and compassion that we ourselves would have, and would have had.

[9]Thirdly, it is plain that the first decision that the Tribunal had to make, and it is one which will have aroused both that antipathy and sympathy in acute form, was their conclusion as to what the reason was for the dismissal. The Appellants alleged that the reason for the dismissal was that Miss Moore had misled them, and that they dismissed her for lies or exaggerations about the position in Ireland. The Tribunal needed to make findings of fact in order to arrive at the conclusion which they did, and against which there is no appeal, namely that the actual reason (at paragraph 9) was simply that she did not attend for work on 22 January 2001, and, therefore, the question for the Tribunal was whether the Respondent was on that day taking time off, that is, as she puts it, on 22 January, which she was permitted to take by Section 57A. If she was, then Section 99 applied and the dismissal was unfair. If they had come to the conclusion that she was dismissed for misconduct, and not for taking unpermitted time off, then they would have been unable to reach a conclusion of unfair dismissal because, as we have earlier indicated, they would have had no jurisdiction to make a finding of ordinary unfair dismissal.

[10]In those circumstances the concentration of the Tribunal on that first issue inevitably led them to approach the issue, which they ultimately determined was the right issue for them to decide, namely that under Section 57A, and with a state of mind which had led them to reach unfavourable conclusions about the Appellants.

[11]There has been recently reported a decision of Mrs Recorder Cox QC, as she no longer was when the judgment was delivered on 14 January 2003, this Tribunal, under her chairmanship, having heard the appeal at a time when she was still Mrs Recorder Cox QC on 28 June 2002, in Qua v John Ford Morrison Solicitors ; of which we have been supplied with a transcript, appeal

EAT/884/01

, and as to which Mr Bonas had supplied a copy of a Times Report, reported in January 2003. Mrs Recorder Cox there said that, as far as she knew, it was the first time that Section 57A of the 1996 Act had fallen to be considered by the Appeal Tribunal and that is, of course, so. Hot on its heels now comes this appeal. We shall refer in a moment to the conclusions to which Mrs Recorder Cox QC came, but, before we do so, we should set out the provisions of Section 57A, so far as material to this case. Section 57A(1):(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, . ...

(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." It is common ground that, by virtue of Section 57A(3), a dependant, as in this case, includes a parent, and on the facts of the matter before us, Miss Moore's father.

[12]Mrs Recorder Cox QC, in her assessment of the Section, for the purposes of the case which she was deciding, which related, as we understand it, to a parent/child relationship, began by looking at the Directive, Parental Leave Directive 96/34/EC , which formed the basis of these provisions and, in particular, Clause 3 which reads as follows:

"1 Member States and/or management and labour shall take the necessary measures to entitle workers to time off from work, in accordance with national legislation, collective agreements and/or practice, on grounds of force majeure for urgent family reasons in cases of sickness or accident making the immediate presence of the worker indispensable."

[13]Of course it is always appropriate, and possible, for Member States in passing legislation to give to the citizens of its particular country more than the Member State is required to do under the Directive, but that is the starting point and, of course, one has, in Section 57A(1), the words "action which is necessary" to which we have referred. Mrs Recorder Cox QC continued as follows:

"15 By way of general observation, and having regard to the Directive and in particular the use of the words 'force majeure' when referring to time off from work during working hours, we agree with the Tribunal's conclusions at paragraph 22 [that is, the Tribunal in her case] as to the nature of the absences contemplated in this section. The statutory right is, in our view, a right given to all employees to be permitted to take a reasonable amount of time off work during working hours in order to deal with a variety of unexpected or sudden events affecting their dependants, as defined, and in order to make any necessary longer-term arrangements for their care."

[14]It should be noted, at this stage, that in the sub-paragraphs, from which we have not cited, other examples include death of a dependant, that is, a requirement to take time off in consequence of a death of a dependant, or because of the unexpected disruption or termination of arrangements for the care of a dependant. In paragraph 16 Mrs Recorder Cox QC continues:

"16 The right to time off to '… provide assistance' etc. in subsection (1)(a) does not in our view enable employees to take time off in order themselves to provide care for a sick child, beyond the reasonable amount necessary to enable them to deal with the immediate crisis. Leave to provide longer-term care for a child would be covered by parental leave entitlement if the employee has responsibility for the child and is entitled to parental leave (that is, has at least one year's service)."

And that did not apply in Qua , nor indeed, obviously, in this case. She continued:

"Section 57A(1)(a) envisages some temporary assistance to be provided by the employee, on an occasion when it is necessary in the circumstances specified. Under subsection (1)(b) time off is to be permitted to enable an employee to make longer-term arrangements for the care of a dependant, for example by employing a temporary carer or making appropriate arrangements with friends or relatives. Subsection (1)(d) would include, for example, time off to deal with problems caused by a child-minder failing to arrive or a nursery or playgroup closing unexpectedly."

She then said this, at paragraph 17:

"17 The right is a right to a 'reasonable' amount of time off, in order to take action which is 'necessary'. In determining whether action was necessary, factors to be taken into account will include, for example, the nature of the incident which has occurred, the closeness of the relationship between the employee and the particular dependant and the extent to which anyone else was available to help out."

She referred to Hansard , and quoted the relevant passages from the speech of Lord Sainsbury of Turville, in the debate in the House of Lords on 8 July 1999, when Lord Sainsbury is quoted as saying the following:

"The statutory right will be limited to urgent cases of real need … .We have now set out clearly on the face of the Bill the circumstances in which leave can be taken … We intend the right to apply where a dependant becomes sick or has an accident, or is assaulted, including where the victim is distressed rather than physically injured. . .. We have not set a limit on the amount of time which employees can take off. This right is to help people deal with emergencies. A limit would not make sense and could be seen as a minimum, which employees might well consider an entitlement to be added to their annual leave. In all cases, the right will be limited to the amount of time which is reasonable in the circumstances of a particular case. For example, if a child falls ill with chickenpox the leave must be sufficient to enable the employee to cope with the crisis – to deal with the immediate care of the child and to make alternative longer-term care arrangements. The right will not enable a mother to take a fortnight off while her child is in quarantine. In most cases, whatever the problem, one or two days will be the most that are needed to deal with the immediate issues and sort out longer-term arrangements if necessary."

In paragraph 21, in the light of that, Mrs Recorder Cox said as follows:

"21 Whilst we recognise that no limit has been set on the number of times when an employee can exercise this right, an employee is not in our view entitled to unlimited amounts of time off work under this section even if in each case she/he complies with the notice requirements in section 57A(2) and takes a reasonable amount of time off on each occasion. Logically this could result in an employee being entitled, regularly, to take a day or more off each week whenever the medical condition causes the child to become unwell; and we do not regard this as being what the legislation is intended to provide. The legislation contemplates a reasonable period of time off to enable an employee to deal with a child who has fallen ill unexpectedly and thus the section is dealing with something unforeseen. Once it is known that the particular child is suffering from an underlying medical condition, which is likely to cause him to suffer regular relapses, such a situation no longer falls within the scope of subsection (1)(a) or indeed within section 57A at all. An employee would, in such circumstances, be permitted to reasonable time off work in order to make longer-term arrangements for care, as is provided by subsection (1)(b). Where the line is to be drawn seems to us to be a matter which will always fall to be decided on the facts of each case. A parent who has been permitted time off to deal with a child who has fallen ill with chickenpox might, for example, subsequently be permitted to further time off if unexpected complications arise requiring immediate action. The key to this is in our view, foreseeability and it will inevitably be a question of fact and degree in each situation."

Then, she concludes, in paragraph 22, by indicating that the convenience of the employer is not to be regarded as a factor, but the concomitant points she makes are, first, that the right is essentially a right to time off to deal with the unexpected and, secondly, that the clear purpose of a legislation is to ensure that employees are permitted time off to deal with such an event whenever it occurs, without fear of reprisals, so long as they comply with the requirements of Section 57A(2).

[15]We agree with, and would wish to apply, that interpretation of the Section which accords, of course, not only with the Directive, but also with the clear words of the statute itself. Mr Bonas has drawn attention, as he sought to do below, we understand without success because the Tribunal was not willing to look at it, to a guide for employers and employees published by the Department of Trade and Industry called "Time Off for Dependants". Mr Bonas refers to Section 5, which says "How much time off can an employee take?" and the guidance for employers there emphasises that:

"The employee is entitled to take a reasonable amount of time off in the circumstances set out in Section 3 [to which Miss Lewis referred us, and to which we will refer in a moment]. The legislation does not specify the amount of time off which is reasonable, since this will vary according to the circumstances of the emergency. For most cases, one or two days should be sufficient to deal with the problem ... ."

[16]That, of course, echoes the words of Lord Sainsbury in the House of Lords. Miss Lewis refers to that part of Section 3, which emphases that:

"The illness or injury need not necessarily be serious or life-threatening, and may be mental or physical. The illness or injury may be as a result of a deterioration of an existing condition; for example, a dependant may be suffering from a nervous breakdown; he or she may not require full-time care, but there may be occasions when his or her condition deteriorates, and his or her partner or parent, son or daughter, needs to take time off work in consequence."

Against the background of that analysis, which, of course, so far as the decision in Qua is concerned, was not available to the Tribunal in this case, but insofar as the proper construction of the statute is concerned would, of course, have been necessary for them to apply, even without that guidance, we refer to the Tribunal's Decision, so far as it relates to the findings of fact. It appears that, on 10 January 2001, she was told by her family who were in Ireland - she had, I think, three brothers and two sisters (one of which sisters was in full-time care in Ireland) - that her father's condition had deteriorated. He had apparently been involved in a car crash towards the end of 2000, and was gravely ill. On Saturday 13 January she telephoned and spoke to Mrs Connolly, and told her that her father was dying. Mrs Connolly immediately said that she should go to Dublin and be with her father, and she flew to Ireland on Sunday 14 January. At paragraph 4.8 the Tribunal recite the finding as follows:

"When she got to Ireland, she arranged for her father's admission into the Mater Hospital. She alone of her brothers and sisters was in a position to arrange for her father's care and was both near enough and, save for her employment, free of other commitments which freed her to attend upon and be with her dying father in the days that followed."

[17]That falls to be set against the evidence which was before the Tribunal, and which has been the subject of notes of evidence which have been provided, which indicate that, just as she had employment commitments, which are there referred to by the Tribunal, so did her siblings, but none which prevented the siblings playing some part in the attendance upon her father and, of course, they had the advantage of living locally in the family home in Dublin. One of the brothers was based in London, and he just came over once before Mr Moore died; but as to each of the other two brothers, one went every other day, and his wife occasionally, and the other gave up his job, which had been a full-time job, and went every day, although when the Respondent was there it was every other day; and then the remaining sister, to which we have referred, also worked full-time and was a single mother, but she went every other day. It is plain that in those circumstances, apart from the brother who had given up full-time work but was less capable, it seems, than the Respondent, once she did leave her job with the Appellants' permission, as is clear, to go over and arrange for her father's admission into the Mater Hospital, she was able to take the lead over the rest of the family.

[18]On Wednesday 17 January, the Respondent telephoned the Appellants and spoke to a different Mrs Connolly (there appear to be two), who at that stage did not believe that she was in Ireland, and did not believe that the Respondent's father was ill, and insisted that she called by 12 noon on Friday. She did phone at 11:30 and spoke to the same Mrs Connolly. The events of 19 January are important. Indeed, in the view of this Tribunal, they are central to the proper outcome of this issue. In the course of that conversation, the Tribunal found that (at paragraph 4.13) the Applicant was distraught and upset and, indeed, crying, and Mrs Connolly, it seems, asked for the address of the hospital and the telephone number, and there is some suggestion that she wanted to send flowers to Mr Moore, but no flowers were ever sent. At any rate she rang the hospital, and she gave an account of the conversation, to which we will refer. In the conversation between Mrs Connolly and the Appellant at 11:30 in the morning, Mrs Connolly said to the Appellant (paragraph 4.18 of the Decision) that "unless she returned to work on the morning of Monday 22 January it was likely that she would be dismissed with immediate effect". That was confirmed by a letter that was subsequently sent on 23 January, that is, the following Tuesday, being the letter of dismissal which reads as follows:

"I am writing to confirm our telephone conversation on Friday 19 th January 2001 when you telephoned to advise that you would not be back in your job for another week due to your father's condition and would telephone again the following Friday 26 th January 2001."

It is not in dispute that that is indeed the substance of the conversation, at any rate towards the end of it. There was a finding by the Tribunal in paragraph 4.21 that:

"During the course of the conversation, the Applicant asked if there was any way she could avoid being dismissed. Mrs Connolly told the Applicant that she should either be at work on Monday morning or that she should send a fax on a hospital letter-head, explaining what the position was with her father, and that there was a possibility that her job would be kept open for her."

[19]But the outcome of the conversation was, as made clear in paragraph 4.18, that "unless she returned it was likely that she would be dismissed with immediate effect" and it was also left that she had said that she would telephone on the following Friday.

[20]On any analysis, therefore, what this was was a request for time off, clearly put in the form of a statement of intention by the Respondent, but if she was entitled to it then that does not matter, which was refused by the Appellants, on the basis that they did not accept that she was entitled to it under Section 57A; and they said that, unless she turned up at 9:00 am on Monday, the likelihood was that she would be dismissed, and, as the Tribunal eventually found, that is what occurred, and, consequently, the reason for this dismissal was her taking the unpermitted time off, and thus the issue is as to whether it was, in fact, within the statutory protection of Section 57A.

[21]The conversation was followed by a conversation between Mrs Connolly and a staff nurse at the hospital. Mrs Connolly made a note of the conversation, which was not accepted as being accurate, or at any rate was doubted by the Tribunal as being accurate, but which contained the following words:

"Mr Thomas Moore is not well – confused and anxious – doesn't know why there – not life threatening – hope he will be able to go home in next few days or so – his legs are not the problem, it is confusion and he is better when his family are around him."

[22]The note that was made by a staff nurse, presumably on that day, but at any rate relating to her account of the conversation, reads as follows:

"His daughter's employer phoned ward at 11 am enquiring for Mr Moore. This lady, Vanessa Connolly is anxious to know if Mr Moore's condition was serious and whether or not it was necessary for the patient's daughter to take time off work. It was explained to Mrs Connolly that Mr Moore was quite ill and would be remaining in hospital for some time. Mrs Connolly also asked nursing staff if Mr Moore's broken legs were the reason for his admission to hospital. Nursing staff explained that Mr Moore had been admitted with other medical problems, not explained in detail, and that he was also confused at times. It would be beneficial for Mr Moore's family to be with him under the circumstances of his illness and confusion."

That, of course, is what may have caused the Tribunal to doubt the accuracy of Mrs Connolly's account, insofar as it does not accord with the suggestion that Mr Moore was hoped to be going home in the next few days, although the Tribunal seek to resolve the apparent dispute by saying, in paragraph 4.16, that:

"It is possible that the staff nurse said that Mr Moore hoped he would be able to go home in the next few days."

But, on any basis, what it does is record the state of health of Mr Moore, as the staff nurse saw it, and at least in substantial part will have been relayed to Mrs Connolly, namely that he was not at that stage in imminent danger of death, because, although he was quite ill, he would be remaining in hospital for some time. Nor, of course, did it indicate any particular need for the Respondent to be present at the hospital, although, of course, as she says, it would be beneficial for Mr Moore's family to be with him.

[23]There was, it seems, a conversation shortly afterwards between the staff nurse and the Respondent, the content of which is not recorded by the Tribunal in its findings (at paragraph 4.17), but they do record that, subsequent to that, Mrs Connolly telephoned the Respondent, and told the Respondent that the nurse had said that, although her father was a nice, but doddery old man, he was confused and did not know where he was; and that according to what Mrs Connolly told the Respondent, which accorded with her note, the nurse had told her that he would certainly be out of hospital in the next couple of days, and there was no reason for the Respondent to be there with him. The Tribunal records that Mrs Connolly accepted in evidence that when the Respondent said that he was dying, she had said, plainly hard-heartedly, "Well, I'm a 57 year old woman, we're all dying" or words to that effect. That was the position as at 19 January when the refusal by the Appellants took place.

[24]Over the weekend it appears that Mr Moore's condition deteriorated; that although it was not discovered until the Monday, he had a heart attack on the Sunday. It was only when the doctors saw him on the morning of Monday the 22 nd that they realised that that had occurred. At 7:00 am on the Monday morning the Respondent was called to go to the hospital by a phone call to the family home in Ireland.

[25]On the findings of the Tribunal, all that occurred on that day was that the fax, which Mrs Connolly had asked the Respondent for on the Friday, was sent to the Appellants. Although there had been thus the heart attack on the Sunday, this was not mentioned in that fax which was dated 19 January (the Friday), albeit despatched by fax on the Monday, the 22 nd , and it reads as follows:

"To whom it may concern: This gentleman was admitted on 15 January 2001 with an acute medical problem under the care of Dr Keogh. This gentleman will be an in-patient for the foreseeable future. Any further enquiries please do not hesitate to contact me."

It is plain that that fax did not indicate that any more than the statement on the Friday made by the hospital, as recorded, either by Mrs Connolly or by the staff nurse, that Mr Moore was dying and, once again it asserts that he would be an in-patient for the foreseeable future.

[26]On the findings by the Tribunal, that is the only event that occurred on Monday. Miss Lewis has pointed out that there was, in the Respondent's Witness Statement, the following paragraph:

"I asked the staff nurse and my father's doctor to fax a letter to Jeffrey Bonas, the owner of the company to confirm my father's condition. The fax clearly invited [the Appellants] to telephone the doctor/nurse if they need to discuss the matter further. In addition my sister telephoned Jeffrey Bonas and left a voice mail message on my behalf as I was extremely upset, in an effort to resolve the matter, however he did not return her call."

Mr Bonas has told us that he did not receive any such voice mail message, and, in any event, no indication is given as to what the content of that message was, nor was there any finding, as we have indicated, by the Tribunal in that regard.

[27]The Appellants thus did not know of the heart attack or of the deterioration of Mr Moore over the weekend, and they sent the letter of dismissal on Tuesday, the 23 rd , the Respondent having not turned up to the office on Monday nor, as we indicated, having telephoned. The letter was sent by International Recorded Delivery on 23 January, and was not received by the Respondent until 26 January in Dublin at the family home. That was the effective date of her dismissal. The following day, Saturday the 27 th , her father died and, of course, thus the greater sympathy must be accorded to the Respondent, who thus lost her father and her job in one tragic week.

[28]The Tribunal concluded that the position of the Respondent fell within Section 57A, and thus that she was unfairly dismissed. They dealt with their conclusion very shortly indeed. There is no harm in conciseness; it is to be welcomed but, of course, it means that there is the less space in which to make all the necessary findings, or at any rate to show that they are being, or have been made. They are contained in two paragraphs which we shall read in full:

"10 It is self-evident we hold that attending a dying parent in hospital can fall within section 57A(1)(a) and (b). It is both providing assistance on an occasion when a dependant falls ill and can be the making of arrangements for the provision of care for a dependant who is ill."

[29]Pausing there, that is simply the statement of what can be the case and, by reference to one or other, or both, of the two relevant sub-sections of Section 57A. It does not, at any rate on its face, include any finding as to what the case was before them. They continue:

"Mr Bonas acknowledged that, had he known fully the situation, the Applicant would not have been criticised for taking that time off."

And that, as we understand it, is a reference to the Appellants' lack of knowledge about the heart attack and deterioration on the Sunday. The Tribunal continued:

"Indeed, in final submissions he said that, had she attended for work on that day, [that is, the Monday] she could have gone back to Ireland straightaway thereafter and the company would have paid her fare and probably would have paid her for the time as well." 11 In those circumstances it seems to us that it simply was not open to the Respondent to say that the Applicant, in staying in Dublin on the morning of 22 January, when she was phoned at 7 in the morning to be told that her father had had a heart attack over the weekend, was not taking a reasonable amount of time off during working hours to provide assistance or to make arrangements."

[30]That is plainly, as we read it, although one must be careful not read Tribunal Decisions as if they are statutes or works of art, an addressing of the position as it was in the light of the Respondent's knowledge on the Monday, after the further development over the weekend. It does not address the position when she made the request/demand for time off, which was refused, on the Friday when, of course, the heart attack had not occurred. The Tribunal then continue:

"There is no doubt that, whether they believed her or not, the Applicant told the Respondent what the reason for her absence was. She told them before she left. She had taken steps to facilitate her return to work by buying an open return ticket and she had, because of her father's condition on Friday 22 January, [that is obviously a typographic error for Friday 19 January] said that she would ring again on the Friday of the following week. In the circumstances that applied at the time, the Applicant could not reasonably have done more to comply with Section 57A(2). That section is drafted sufficiently widely to apply to a situation where, whilst absent for a period of which the employer has been properly notified, circumstances change and an extension must be taken without notice. In those circumstances the Tribunal were satisfied that Section 57A applied to the Applicant's absence from work on the Monday for which she was dismissed. It follows that the reason for dismissal came within section 99 and that the dismissal was, without more, unfair."

[31]It is apparent that the bulk of paragraph 11 relates to whether there has been compliance with Section 57A(2). So far as that is concerned, applying Section 57A(2) to the event of Friday, there would, in our judgment, be little to prevent a proper and reasonable conclusion by the Tribunal that on the Friday there was compliance with Section 57A(2) because, at that stage, the reason for the absence was not put on the basis of heart attacks or deteriorations, but the state of the health of the Respondent's father on the Friday, and, although Mr Bonas has sought to argue before us to the contrary, it appears to us to have been sufficient for the Respondent to say that she proposed to telephone again the following Friday, which effectively put a first long stop on the period of time that she expected to be absent, and would give the opportunity to the employer the following Friday to place any proper ultimatum, if the request was otherwise within Section 57A.

[32]We do not find it possible to approve of the sentence in paragraph 11 which indicates that circumstances change, and an extension can or must be taken without notice. It appears to us that it is clear from the structure of the statute that "without notice" cannot be taken literally. It is certain that, in appropriate emergency circumstances, time off can be taken without prior permission, but in such circumstances there must then be the operation of Section 57A(2) as soon as reasonably practicable, and it is only where that obligation cannot be complied with until after the employee has returned to work, that Section 57A(2) can be excused entirely. But, if Friday January 19 were the relevant date, and were being considered as the relevant date, for the operation of Section 57A(2), that last provision set out by the Tribunal would be an irrelevance and, therefore, its incompleteness would not be a problem.

[33]But what appears to us to be a real problem is that nowhere is there a finding, at any rate an express one, in respect of Section 57A(1) with regard to the events of Friday, and the first sentence of paragraph 11 appears to direct the question, as we have already indicated, only to the events of the Monday. In our judgment, building on what Mrs Recorder Cox QC has already indicated, it is necessary for a Tribunal, dealing with Section 57A, to ask itself a series of questions, always predicated upon the relevant date. The relevant date must be the date when, in a case where there has been, as here, a request or demand for time off which has been unreasonably refused, the time when that request/demand is made and refused. In this case that was 19 January, and thus the first question is; when the request was made on 19 January and refused, was that a request which was unreasonably refused? As at 19 January, was there a request to take a reasonable amount of time off during the employee's working hours in order to take action which is necessary either(a) to provide assistance on an occasion when a dependant falls ill, gives birth or is injured or assaulted or

(b) to make arrangements for the provision of care for a dependant who is ill or injured? Those questions must be asked, and must, in our judgment, be asked, separately. Thus, on Friday 19 January was the Respondent asking/insisting on time off for the week, at least until Friday January 26, in order to take action which was necessary to provide assistance on an occasion when her father fell ill, or, if not, was that request by the Respondent to take a reasonable amount of time off in order to take action which was necessary to make arrangements for the provision of care for her father who was ill or injured? If the answer to either of those questions is "Yes" and, of course, the test of what is necessary and reasonable must always be for the industrial jury, the Employment Tribunal, then there must be progress on to consider Section 57A(2), as to whether the employer has been told the reason for the absence as soon as reasonably practicable, and except in the provided circumstances, he /she must tell the employer for how long he/she expects to be absent.

[34]It appears clear to us that the Tribunal did not ask themselves the question under Section 57A(1) in relation to the 19 January and, if they did ask themselves that question, they did not answer it. As we have already indicated, paragraph 10, where one would expect to see the findings in respect of Section 57A(1)(a) with regard to the 19 January, does not contain such a finding. It simply states, as we have indicated, that attending a dying parent in hospital can fall within one or other of the Sections, and then refers to some acknowledgments which do not appear to us to be entirely, or certainly centrally, relevant, by Mr Bonas. They do not then go on to make findings which, perhaps, they might have made.(1) As to whether on Friday 19 January, Mr Moore was dying or, perhaps, was reasonably believed by the Respondent to be dying?

(2) Whether in those circumstances or otherwise, the time that the Respondent was saying that she was going to take, and implicitly requesting to take, was necessary to provide assistance on an occasion when her father fell ill?

[35]It would appear to us difficult to answer that question positively where her father was, on the Friday, no worse than he had been on the Monday when he had been admitted into hospital, and when he was in the care of the hospital and not, apparently, needing her assistance although, of course, always, no doubt, welcoming the visits from her and her family; and when one bears in mind the need of the legislation, or the structure of the legislation, that what is required is to cope with an emergency, and for two or three days on average, although, of course, no time limit is set for such absences but it is always a matter for the Tribunal. It would appear therefore necessary for the Tribunal carefully to have considered whether it could be said that, once her father's admission into hospital had been arranged the previous Monday, it was necessary for her to provide any further assistance, or whether now she fell within the same situation, as is referred to by way of exemplar by Lord Sainsbury, of a child who has caught chickenpox, but in respect of which suitable arrangements had been made.

[36]If the conclusion for the Tribunal was that the situation on Friday did not fall within Section 57A(1)(a) then there would be need to have been consideration of, and a finding as to, whether Section 57A(1)(b) was satisfied, namely whether on Friday 19 January it was necessary to have another week in which she could take action to make arrangements for the provision of care for her father. She had taken steps to make those provisions. That much is clear by the finding in paragraph 4.8, which we have recited, that she had arranged for her father's admission into the Mater Hospital. There is no evidence, even in the fax or the staff nurse's note, to which we have referred, that any further arrangements were expected, or needed, from her, apart from the beneficial presence of any member of his family, and there were others close. But the Tribunal could, and might, have made findings in that regard but it did not appear to us that they did make findings that, as at Friday 19 January, her presence was necessary for another week to provide such assistance.

[37]In those circumstances had there been a positive answer given by the Tribunal, as we have already indicated, we would have concluded that Section 57A(2) would have been satisfied. Miss Lewis refers to the statement at paragraph 10 in the first sentence, which we have recited, which refers to the fact that attending a dying parent in hospital can fall within the Sections and, she submits, that is an implicit finding that, albeit that it is not recorded by the medical notes, it was at least the reasonable belief of the Respondent on that day, as is corroborated by her statement to that effect, in the telephone call which met the hard-hearted response of Mrs Connolly to which we have referred.

[38]It may be that there could, or would, or might, have been a finding by the Tribunal, although it is not so expressed that, as on Friday, either notwithstanding the medical evidence Mr Moore was dying, because after all he did die a week or so later, or alternatively, if that be sufficient, and we express no view as to that, it was sufficient that she believed he was dying. But there is still, even if that be so, no finding as to whether it was necessary for her to provide, either assistance, within Section 57A, for another week, or arrangements within Section 57A(1)(b) for another week.

[39]What in fact the Tribunal appear to have done is not made a finding, as to the position as at 19 January, but turned instead to make findings as at 22 January, which was, of course, the date when she was supposed to have returned to work but did not. Miss Lewis does not submit that that is the relevant date; she submits that it was appropriate for findings to have been made about 22 January as well as 19 January, but does not go so far as to suggest that it was enough to make findings only in respect of 22 January. Of course, as at that date, it was clear, although for some reason not incorporated in the fax that was sent on that day, that her father's condition was now much more serious, he having had the heart attack, and sadly that prognostication, if it had been given, would have been made out by what occurred seven days later. But the problem is that no request was made on the Monday 22 January to the employer, no indication that, although the position may not have been as bad as, perhaps, everybody thought on the Friday, now it was manifestly worse, and now she intended not to come back and was insisting on her rights under Section 57A.

[40]Of course it might be, as Mr Bonas has submitted, that in those circumstances the employer might have reacted differently, but no findings are made as to what would have occurred in that regard, and on any basis there was no such request. If there had been a request, then that request would need to have complied with Section 57A(2). It may well be that there would have been no difficulty in complying with Section 57A(2), but there was no attempt to comply with the provisions of Section 57A(2) on the Monday in the light of the changed circumstances, and we have already indicated that we do not agree with the Tribunal that, where circumstances change, an extension to a previous permitted period can be taken without notice, without at least an attempt to comply with Section 57A(2) and, for example, a finding by the Tribunal that it was not reasonably practicable to do so. No such finding was made in this case.

[41]In those circumstances, we are satisfied that the Tribunal did not ask itself the right questions, or apply the law correctly. We then consider what we should do. We asked ourselves first, whether if they had asked the right questions in relation to Section 57A(1) and (2) with regard to Friday 19 January, they would inevitably have reached the same conclusions as they did? We are unable to reach that conclusion.

[42]We next asked ourselves, whether it is clear that had they asked the right questions on Friday 19 January, they would inevitably not have been in a position, however much, out of sympathy, they would have strained to find for the Respondent, to make findings other than that there was non-compliance with Section 57A? We are unable to reach that conclusion either.

[43]We therefore have no alternative, reluctant as one always is to remit the matter to an Employment Tribunal for further consideration, but to send this back to a different Employment Tribunal for a re-hearing of the issue as to whether there was automatic dismissal, by virtue of non-compliance with Section 57A, by the Respondents.

[44]In those circumstances we allow this appeal.