EAT rules emergency month off to care for children ‘too long’

Case Study: Month off to care for children ‘too long’

A company fined for sacking an employee because he took a month off work in an emergency to look after his family, has won its appeal against an Employment Tribunal decision.

Cortest, a materials testing firm, had been fined £7,243 by the Employment Tribunal after it found that Mr K O’Toole had been unfairly dismissed for claiming emergency leave to look after dependants under the Employment Rights Act 1996.

O’Toole had claimed that he had no choice but to take emergency time away from his job to care for his children himself because he could not make alternative childcare arrangements, due to a lack of necessary finances.

At the time of O’Toole’s request for emergency leave, his employer informed him that he should resign from his position in order to take the time off and be reinstated when the situation improved.

This led to a conflict over whether O’Toole was in fact being dismissed and led to the Employment Tribunal hearing and its decision in favour of O’Toole.

Following an appeal by Cortest, the Employment Appeals Tribunal ruled that a period as long as a month to care for dependants would not fall under the Employment Rights Act 1996.

Kathleen Healey, employment partner at Freshfields Bruckhaus Deringer, said: “The time off that the employee took, claiming it to be an emergency, was too long. It should not have been more than a week.”

Healey explained that O’Toole could have taken up to 13 weeks’ unpaid parental leave instead. She added: “In most cases, the employee should serve the employer 21 weeks’ notice prior to taking parental leave.

“However, a fair employer could waive the right to such notice and allow staff unpaid leave rather than asking them to resign.”