MacCullogh & Wallis Ltd v Moore, EAT, IDS Brief 740, September 2003

Are employees really protected by the new rights under family friendly legislation? Ms Moore was employed by a company, MacCullogh and Wallis, from the 23 May 2000 until she was sacked on 26 January 2001. She therefore had less than one year's service at the time of dismissal.

She brought a claim in the Employment Tribunal, which she won, alleging the reason she was dismissed was in breach of 57(A) of the Employment Rights Act, 1996. This is the law which gives an employee the right to take unpaid time off work in certain circumstances to care for, or make arrangements for, a dependant. If an employee is dismissed for exercising this right, Section 99 of the Employment Rights Act 1996 states the dismissal will be automatically unfair.

However Ms Moore's employers appealed to the Employment Appeal Tribunal. The EAT upheld the appeal stating that the Tribunal had failed to make the necessary findings to decide whether Section 57A could actually apply. It was particularly concerned with the requirement of the employee to give notice, when exercising the right.

So what were the facts?

Ms Moore informed her employer on Wednesday 10 Jan-uary 2001 that her father, who had been recuperating in hospital from a car crash in Ireland, was dying. Her employer agreed she could go immediately to be with him. However the company became sceptical as to whether Ms. Moore had gone to Ireland and insisted she contact them. 
On Friday 19 January Ms Moore phoned the company and explained she intended to be off work until Friday 26 January when she would contact the company again. The company told her she would be dismissed unless she returned to work on Monday 22 January.

Meanwhile the company rang the hospital and were told that her father's condition was not life threatening.

When Ms Moore did not attend work on 22 January the company sent her a letter of dismissal which reached her on Friday 26 January.

However, unknown to the company her father's condition had indeed deteriorated and he died the day after she received her letter of dismissal, on Saturday 27 January.

Both the Tribunal and the EAT agreed that attending a dying parent could fall within Section 57A 1(a)(b). That subsection pro-vides that an employee is entitled to time off to take action which is necessary to make arrangements for the provision of care for a dependant who is ill or injured. The definition of dependant includes a parent (Section 57A(3))

However the EAT said the Tribunal must ask itself a number of questions regarding the "relevant" date, ie the date when the request for time off was refused. In this case the EAT said the relevant date was Friday 19 January, not Monday 22 January. The Tribunal should have considered on this date whether Ms Moore was covered by the section and if she was, whether she had comp-lied with the proper notice require-ments. The EAT sent the case back to a differently constituted Tribunal to make a final decision.

The EAT appeared to suggest that an employee's protection against dismissal is lost if the employee requires more time off than he or she originally anticipated and he or she fails to contact his employer again to give further notice. This appears to be a very restrictive interpretation of the legislation.

This case follows on the heels of Qua v Ford Morrison, LELR 78, March 2003 which also found that not all the requirements of the right had been met. There is a real concern that an overly mechanistic and narrow view of the legislation has been taken rather than consideration of the spirit and intention behind the creation of this family friendly legislation. This tendency by the EAT is particularly unfortunate given that the legislation is to protect people in times of family crisis and misfortune, when it is hardest to concentrate on dotting the "i"s and crossing the "t"s.