Employee dismissed for taking time off to look after child

In the case of Clarke v Credit Resource Solutions, the Employment Tribunal decided that an employee was subjected to a detriment and unfairly dismissed for taking time off work to make emergency childcare arrangements.

 

Employees have the right to take a reasonable amount of unpaid time off work to deal with emergency situations affecting their dependents, for example, where a childminder cancels or a child is ill.  All the employee is required to do in order to exercise the right is to tell their employer the reason, as soon as practicable, and how long they expect to be away from work.  If they are refused permission or suffer a detriment as a result of taking the time off, the employee can bring a claim.

 

Mr Clarke and his wife both worked for Credit Resource Solutions (CRS). Mrs Clarke's mother usually looked after their children whilst her daughter and son-in-law were at work.

 

On 5 July 2010, Mrs Clarke's mother was ill.  Mr Clarke dropped his wife at work and told his Line Manager that he would be in as soon as he had found another relative to look after their children.  Mr Clarke arrived half an hour late for his shift but refused to sign a "late form," which stated that an hour would be deducted from his salary.

 

An hour was deducted from his July salary and after a number of attempts to get Mr Clarke to sign the late form, CRS told Mr Clarke, at a disciplinary hearing, that unless he signed it, he would be dismissed.  He refused and was dismissed for gross misconduct for a refusal to carry out duties.

 

Mr Clarke brought Tribunal proceedings, arguing that he had suffered a detriment and had been unfairly dismissed for exercising the right to take time off to make childcare arrangements.

 

The Tribunal decided that Mr Clarke had met the requirements to take time off to arrange emergency childcare and being half an hour late was reasonable.  The Tribunal also decided that Mr Clarke had suffered a detriment by (i) having one hour's pay deducted for being half an hour late and (ii) by being put under pressure to sign the late form.

 

When considering the claim for unfair dismissal, the Tribunal did not accept that there had been gross misconduct, even though Mr Clarke had possibly shouted at the Finance Manager about the late form.  The Tribunal found that the real reason for the dismissal was Mr Clarke's refusal to sign the late form that was connected with the lawful exercise of his statutory right to take time off to arrange emergency childcare. It also said that the late form was not clear on what would happen to employees who were legitimately off or late in due to emergency childcare. The form simply stated that an hour would be deducted when, in practice, CRS could use its discretion to waive this.

 

This is one of very few cases to deal with dismissals "connected with" an employee exercising their right to take time off for dependents. Clearly, CRS was too heavy handed in its approach and the wording of the form caused unnecessary aggravation.

 

The case also demonstrates how important it is to make sure policies are communicated to staff and managers. The Tribunal noted in this case that the employer's witnesses appeared to be unaware of the Time Off For Dependents Policy, which was contained in a comprehensive staff handbook.