Case Round Up
In this month’s ENews we consider whether the dismissal of an employee for exercising his right to take time of for dependants amounted to an automatically unfair dismissal; whether a deduction from wages should be itemised on a payslip and we consider the new right, which allows employees to accompany a pregnant employee to antenatal appointments.
Can an employee bring a claim in the employment tribunal for automatically unfair dismissal for taking time off to deal with emergencies?
In the case Ellis v Ratcliff Palfinger Ltd, the Employment Appeal Tribunal considered whether an employee had been automatically unfairly dismissed for taking time off to deal with an emergency, which involved his heavily pregnant wife.
Mr Ellis was given a final written warning on 25 November 2011, which was to remain on file for 12 months, in relation to issues regarding his attendance.
Mr Ellis’s partner was heavily pregnant. On Monday 6 February 2012, Mr Ellis took her to hospital several times because of concerns about her health. Mr Ellis failed to contact his employer directly but his father telephoned the Company in the afternoon. On 7 February 2012, Mr Ellis did not attend work nor did he contact his employer as he accompanied his partner to hospital where she was admitted to have the baby. On 8 February 2012, Mr Ellis received a text from the Company asking him to contact the office urgently. That evening Mr Ellis left a message on the Company answer phone stating that he would not be in work the following day.
Mr Ellis was called to a disciplinary hearing and was subsequently dismissed with notice.
Mr Ellis brought tribunal proceedings arguing that he had been automatically unfairly dismissed for taking time off under section 57A of Employment Rights Act 1996 (ERA). Section 57A of the ERA entitles employees to take a reasonable amount of unpaid time off work to take necessary action to deal with particular situations affecting their dependants
The Employment Tribunal dismissed the claim. It held that section 57A of the ERA did not apply because Mr Ellis had not advised his employer for the reason for his absence as soon as reasonably practicable.
Mr Ellis appealed however his appeal was not upheld.
When considering whether to allow an employee time off to deal with emergencies it is not possible to specify a maximum reasonable period of time. What is reasonable will depend on the incident and the circumstances of the employee. It is important to set out in a policy document the circumstances in which an employee can take time off and the reporting requirements where such time off is taken.
Does an overpayment of wages, which is subsequently rectified and not itemised in a payslip amount to a deduction of wages?
This was considered by the Employment Appeal Tribunal (EAT) in the case of Ridge v HM Land Registry, the Claimant became unwell and had significant periods of sickness absence. After exhausting his sick pay entitlement he continued to be absent from time to time meaning that there were months when he was entitled to be paid for some days but not others. This affected the figure for his gross pay. In some months the gross amount was reduced appropriately. However, in other months the Claimant was overpaid; where an overpayment was made it was recovered from his following month’s gross pay.
Employers are obliged (under Section 8 of the Employment Rights Act 1996) to give their employees, either at or before the time any payment of wages is made, an itemised written payslip. The payslip has to contain details of:-
- The gross amount of the wages or salary;
- The amount of any deductions;
- The purpose for which the deduction is made (e.g. pension contribution, income tax, national insurance);
- The net amount of wages or salary payable, and
- Where different parts of the net amount are paid in different ways, the amount and method of payment of each part.
Mr Ridge issued tribunal proceedings arguing that his employer had failed to comply with its obligation under section 8 of ERA 1996.
The Employment Tribunal rejected his claim. It held that the deductions to Mr Ridge’s gross pay were not deductions for the purposes of section 8 of ERA 1996, rather they were "adjustments". The Employment Tribunal ordered him to pay £500 costs to the Registry on the basis that his claim was misconceived.
Mr Ridge appealed the decision to the EAT, arguing that the recovery of an overpayment from a previous month was a deduction from his current gross salary.
The EAT overturned the tribunal’s decision. It held that the reduction of a subsequent month’s pay was a deduction for the purposes of section 8 of ERA 1996. The Registry had failed to identify the amount and purpose of the deduction on Mr Ridge’s payslips and he was entitled to a declaration to this effect.
This case highlights the importance of correctly itemising payslips. If an employer reduces an employee’s wages to recover an overpayment made in a previous period it may be at risk of damages up to the amount that the employer has deducted if the deduction has not been identified properly. This is despite the employer being entitled to make the deduction and the employee understanding the reason for the deduction.
In the News…
From 1 October 2014, employees and agency workers (who have been working for 12 weeks or more) will have the right to take unpaid time off to accompany a pregnant woman to antenatal appointments.
There is no qualifying period of service to obtain this right and therefore employees and agency workers are entitled to this right.
The amount of time off that an employee or agency worker may take is limited to no more than 2 occasions, lasting no more than 6.5 hours each.
If requested by the employer, the employee or agency worker must provide a document showing:-
- The employee or agency worker has a qualifying relationship with the pregnant woman or expected child;
- That the purpose of taking the time off is to accompany a pregnant woman to an ante-natal appointment;
- That the appointment has been made on the advice of a registered doctor, registered midwife or registered nurse, the date and the time of appointment.
- The Department for Business and Innovation and Skills has produced guidance: Time off to Accompany a Pregnant Woman to Ante-Natal Appointments to help employers deal with such requests.
If you would like any further assistance in relation to this article, then please contact Sejal Raja.
020 7227 7410
This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.