MRS M L FORSTER v CARTWRIGHT BLACK SOLICITORS [2004] UKEAT 0179_04_2506

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0179_04_2506Case No Appeal No. UKEAT/0179/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS M L FORSTERAPPELLANTCARTWRIGHT BLACK SOLICITORSRESPONDENT
Before
Mr Justice Beatson Mr F Motture Mr D WelchDate 25 June 2004
[1]APPEARANCES For the Appellant No appearance or representation by or on behalf of the Appellant For the Respondent Mr Childs (Solicitor) Messrs Cartwright Black Solicitors 36 West Bute Street Cardiff CF10 5OA SUMMARY Time Off Parental Leave Time off for dependant care. Construction of ERA section 57A and Parental Leave Directive to cover death of elderly dependant. Application of Qua [2003] IRLR 184 THE HONOURABLE MR JUSTICE BEATSON By a Decision promulgated on 26 November 2003, the Employment Tribunal at Cardiff dismissed the Applicant, Mrs Forster's claim for unfair dismissal pursuant to section 99 of the Employment Rights Act 1996 and for automatic unfair dismissal by virtue of section 99(1) of the Employment Rights Act by reason of being dismissed for one of the sets of circumstances prescribed therein: the reason in this case being time off under section 57A of the 1996 Act.[2]Section 57A(1) of the 1996 Act was enacted to implement the Parental Leave Directive 96/34/EC and the material parts of it are:
"(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."
[3]Under sub-section (2) of section 57A the employee is required, in order to engage the provision, to tell the employer the reason for his absence as soon as reasonably practicable. The remaining provisions of section 57A specify who qualifies as a dependant for the purposes of the provision. The only provision that has to be considered in the present appeal is section 57A(1).[4]The fact of the case are not in dispute. Mrs Forster started in her employment with the Respondent Solicitors on 5 August 2002. She had three days sick leave in October, due to an infection, and in January 2003 she had twelve days' paid bereavement leave due to the death of her father. In May she had two days sick leave due to an infection, and in that month, sadly, her mother also died. She had five days bereavement leave, immediately followed by two weeks sick leave, certified by her doctor as a "bereavement reaction". A further two weeks sick note, for the same reason, was issued for two weeks from 10 June 2003. After Mrs Forster sent that sick note to the Respondent, she was invited to a meeting on 12 June and was dismissed. The letter of dismissal dated 16 June stated that the reasons arose from her latest period of absence and her absence record generally.[5]Accordingly, although she she does not qualify for the ordinary unfair dismissal jurisdiction, because she had not been employed for the required period, she alleged that she had been unfairly dismissed because she had been dismissed for an inadmissible reason under section 47A(1)(c) i.e. that the reason for her dismissal was that she had taken time off in consequence of the death of a dependant.[6]The Tribunal had the benefit of submissions on behalf of the Applicant by Mr Morgan, a solicitor and by Mr Childs, on behalf of the Respondent. At this appeal the Appellant has not attended. An earlier date for the hearing was adjourned, following an application by the Appellant. A further application to adjourn the hearing was made and refused by the Deputy Registrar. Accordingly, we hear this appeal, which has been duly set down, in the absence of the Appellant. We have, however, had the benefit of a skeleton argument submitted in support of the Appellant, and we have the Notice of Appeal and grounds of appeal.[7]The point that arises before us is a short one. It is whether the Tribunal's conclusion that the time taken off by Mrs Forster after the death of her mother, for which she had sick notes from her doctor, fell within the scope of section 57A(1)(c), i.e. whether the Tribunal erred in law in concluding that on the facts set out above, it did not.[8]The Tribunal had before it the two decisions of this Tribunal on the provisions of section 57A - Qua -v- John Ford Morrison (Solicitors) [2003] IRLR 184 and MacCulloch & Wallis Ltd -v- Moore , a decision of the Employment Appeal Tribunal promulgated on 11 February 2003, shortly after the decision in Qua .[9]The Appellant submitted before the Tribunal that the proper approach was to take a purposive view of section 57A(1)(c). The provision should, it was argued, be interpreted, taking the action required by Mrs Forster's doctor to enable her to protect her health, arising out of her reaction to the death of both her parents in four months. It was submitted that to take action which is necessary can include following a doctor's advice not to work in consequence of the death of a dependant. The Appellant, before the Tribunal, relied on the difference in the language of the statute between sub-paragraphs 1(a) and 1(b), regarding ill dependants, which uses the words "to provide assistance" and "to make arrangements", whereas subsection 1(c) uses the words "in consequence of".[10]The Appellant submitted that as a result of the decision in Qua , the Tribunal should ask the following questions:(1) did the employee take, or seek to take, time off in order to take action which was necessary to deal with one or more of the five situations listed at paragraphs 8(e) in subsection (1) of the section?(2) If so, was the amount of time taken, or sought to be taken, reasonable in the circumstances?(3) If these two questions were answered affirmatively, was the reason or the principal reason for the dismissal of the employee that she had taken, or sought to take that time, off work? The Tribunal answered the first question negatively, and therefore did not reach the second and third questions, hence before this Tribunal we are solely concerned with the first question.[11]The position in relation to section 57A is set out by Mrs Recorder Cox, as she then was, in the Qua decision. That decision was followed in MacCulloch & Wallis Ltd -v- Moore by a Tribunal presided over by the President of this Appeal Tribunal. Neither of those cases concerned section 57A(1)(c). Nevertheless the general approach to section 57 set out in those decisions is of significant assistance to us, in considering whether to take the broad interpretation urged on us in the Appellant's Skeleton Argument, which in effect replicates the submission before the Tribunal. Paragraph 8 of that states:
"It is the case of the Appellant that the premise that "reasonable time of in consequence of the death of a dependant "should not be restricted to the making of the actual funeral arrangements but should include time to come to terms with the emotions caused by the death of a parent let alone the death of both parents within the time of a few days over 4 months."
The Appellant urges that we take an expansive and purposeful approach to the meaning of the section.[12]The Tribunal considered Qua , the Parental Leave Directive 96/34/EC, and the statement of Lord Sainsbury in the debate in the House of Lords on 8 July dealing with what became section 57A. As far as the Directive is concerned, we have regard to the preamble to the framework agreement, annexed to the Directive, which the Directive put into effect. The preamable states that "The enclosed framework agreement represents an undertaking …. to set out minimum requirements on parental leave and time off work on grounds of "force majeure" as an important means of reconciling work and family life an promoting equal opportunities and treatment between men and women". Clause 3 states:
"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]In the debate in which the House of Lords considered what became 57A, Lord Sainsbury stated in Hansard 8 July 1999, column 1084 that:
".. employees who have to take time off work to deal with an emergency involving someone else who depends on them are able to do so without fear of victimisation. But we recognise that the Bill as published provides a wide right to time off for domestic incidents, and we are persuaded that it could be interpreted as going beyond our policy intentions. The provisions were never intended to allow employees time off to get their washing machines mended, for example."
And then he continued:
"These amendments will put the provision back on a proper footing and cut out the risk of abuse by those who may seek to take time off to deal with running repairs to the home. The statutory right will be limited to urgent cases of real need. The emergency must involve a dependant who is either a family member or someone who relies upon the employee for assistance in the particular circumstances."
And then he continued:
"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. It provides for reasonable time off if an employee suffers a bereavement of a family member, to deal with the consequences of that bereavement, such as making funeral arrangements, as well as to take time off to attend the funeral."
[14]In the Qua case, Mrs Recorder Cox, as she then was, stated that:
"The statutory right is, in our view, a right given to all employees to be permitted to take a reasonable amount of time off 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."
In that case, it was held that a parent who took time off because of the ill of her child did not qualify where she stayed at home to look after the child. The Tribunal held that the right did not enable a mother to take a fortnight off while her child was in quarantine, for example.[15]There is, we recognise, a difference between the words in section 57A1(c) and the other subsections in that the other subsections are more specific. Mr Childs, on behalf of the Respondent, submitted that the difference in words reflects the greater range of arrangements that would be required by a bereavement. He submits that the Appellant's arguments, and in particular those contained in paragraph 8 of the Skeleton submissions, do not adequately take account of the statutory words triggering the entitlement that the time-off be "in order to take action which is necessary".[16]We agree with this submission. We consider that although the decisions in Qua and MacCulloch concerned different provisions of section 57, the basic approach of entitling time off to take action, which is necessary to deal with an emergency, applies to subparagraph (c). For this reason we conclude that the Tribunal did not fall into error in concluding that time taken off by Mrs Foster after the death of her mother, for which she had sick notes because of her bereavement reaction, falls within the scope of Section 57A(1).[17]The Appellant submits that the consequence of the Tribunal's conclusion is that the subparagraph is restricted to the making of the actual funeral arrangements. That does not, in our view, follow, either from the decision of the Tribunal or our decision. The Minister referred to making funeral arrangements but also referred to taking time off to attend the funeral. There are a myriad of other arrangements which have to be made following a bereavement. These include registering the death; if there is a will, applying for probate and being interviewed by the Probate Office, and many other matters. Those are matters which, in our view, fall within section 57A(1)(c). What is the trigger for this section is that the time off is taken in order to take necessary action in consequence of the death.[18]The Appellant's argument in effect would remove the careful boundary around this section to which the Minister referred in introducing the amendments. It is true that, whereas the other subsections are necessarily concerned with assistance or care of other persons, the death of a dependant may affect the person who has taken time off, but we consider that effect in itself does not trigger the section. Moreover, although it is to be expected that the death of a dependant will produce sadness, bereavement and unhappiness, the section was not intended to introduce the right to compassionate leave as a result of a bereavement.[19]Accordingly, for these reasons, we find that the Tribunal did not fall into error. The Appellant did not come within the 1996 Act, because she had less than 12 months continuous service, and she was not dismissed for an inadmissible reason. We therefore dismiss this appeal.