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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Royal Bank of Scotland Plc v Harrison [2008] UKEAT 0093_08_2706 (27 June 2008) URL: http://www.bailii.org/uk/cases/UKEAT/2008/0093_08_2706.html Cite as: [2009] ICR 116, [2009] IRLR 28, [2008] UKEAT 93_8_2706, [2008] UKEAT 0093_08_2706

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APPEARANCES

 

For the Appellant	MS E BELL (Solicitor) Messrs Brodies LLP 2 Blythswood Square Glasgow G2 4AD
For the Respondent	MRS J K HARRISON (The Appellant in Person)


 


SUMMARY

TIME OFF: Parental leave/dependant

The employee was told on 8 December that her childminder was unavailable for 22 December. She did all she could to make alternative care arrangements but was unsuccessful. She asked the employers for the day off, under s57A(1)(d) of the Employment Rights Act 1996, but they refused and subsequently disciplined her when she stayed at home to look after her children. The Employment Tribunal found that she had been subjected to a detriment for taking time off when, under s57A(1)(d), she was entitled to take that time off.

Held on appeal by the employers (1) that there was no warrant for the insertion of the words "sudden and" or "in emergency" into s57A(1)(d). Although Directive 96/34 which led to the introduction of s57A into the 1996 Act provided for narrow protection, Parliament had provided wider protection than the minimum required by the Directive; (2) that the passing of time between the employee's discovery of the need for making alternative arrangements and the taking of time off was to be considered in the application of the word "necessary" s57A(1); the word "unexpected" in s57A(1)(d) was an ordinary word when applied on the facts of each case and should not be supplemented by the further words proposed; (3) the Employment Tribunal had made a factual decision which was not based on any error of law.

HIS HONOUR JUDGE BURKE QC

The Facts

1. This is an appeal by the Respondents, the Royal Bank of Scotland, whom we shall call "RBS", against the decision of the Employment Tribunal sitting at Leicester, chaired by Employment Judge Warren and sent to the parties with written reasons on 13 December 2007, to make a declaration under s49(1)(a) of the Employment Rights Act 1996 that the Claimant, Mrs Harrison, had been subjected to a detriment in the form of a verbal warning for a prescribed reason, namely, that she had exercised her right to time off for a dependant.
2. The facts as found by the Tribunal can be briefly stated. Mrs Harrison was employed by RBS as a Home Insurance Claims Advisor. She worked three days per week, Wednesday to Friday. She has two young children, aged 5 and 15 months at the date of the Tribunal's hearing. When she was at work, the children were looked after by a childminder. Her husband runs a bathroom fitting business which includes a shop. He has one employee. There were no grandparents in a position to provide care to Mrs Harrison's children.
3. On 8 December 2006, Mrs Harrison was informed by her regular childminder that she would not be able to look after the children on 22 December. The Tribunal found that this development was unexpected. Over the following days, Mrs Harrison tried to find a replacement carer by contacting her family and other childminders whose services she had used from time to time. Her husband could not leave the shop because his sole employee was going to be away.
4. By 12 December, Mrs Harrison had used all her contacts but had failed to find a substitute for her regular childminder. She therefore told her Team Leader, when she went to work on the 13th, about the problem and asked to have Friday, 22 December off. No suggestion was made to her that she would not be able to have that time off. She thought that the only outstanding issue was whether it would be time off with or without pay.
5. However, after a week's delay, she was told, on 20 December, that RBS could not cover her on the 22nd, that she could not take that day off and that, if she did so, it would be treated as an unauthorised absence. Mrs Harrison, having no alternative, stayed at home on 22 December to look after her children and was, on 2 February 2007, given a verbal warning, to last for 6 months, for having done so. Her appeal against that warning failed.

The Statutory Provisions

6. Section 57A of the Employment Rights Act 1996 introduced by the Employment Relations Act 1999, provides as follows (insofar as relevant):

"(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 accident 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.

(2) Subsection (1) does not apply unless the employee-

(a) tells his employer the reason for his absence as soon as reasonably practicable, and

(b) except where paragraph (a) cannot be complied with until after the employee has returned to work, tells his employer for how long he expects to be absent.

(3) Subject to subsections (4) and (5), for the purposes of this section 'dependant' means, in relation to an employee –

(a) a spouse,

(b) a child,

(c) a parent,

(d) a person who lives in the same household as the employee, otherwise than by reason of being his employee, tenant, lodger or boarder."

7. Section 47C of the 1996 Act, similarly introduced, provides:

"(1) An employee has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done for a prescribed reason.

(2) A prescribed person is one which is prescribed by regulations made by the Secretary of State and which relates to –

(a) pregnancy, childbirth or maternity,

(b) ordinary, compulsory or additional maternity leave,

(ba) ordinary or additional adoption leave,

(c) parental leave,

(ca) paternity leave, or

(d) time off under section 57A."

8. The regulations referred to in s47C(2) are the Maternity and Parental Leave Regulations 1999. Regulation 19 of those regulations provides:

"(1) An employee is entitled under section 47C of the 1996 Act not to be subjected to any detriment by any act, or any deliberate failure to act, by her employer done for any of the reasons specified in paragraph (2).

(2) The reasons referred to in paragraph (1) are that the employee -

(a) is pregnant;
(b) has given birth to a child;
(c) is the subject of a relevant requirement, or a relevant recommendation, as defined by section 66(2) of the 1996 Act;
(d) took, sought to take or availed herself of the benefits of, ordinary maternity leave;
(e) took or sought to take -

(i) additional maternity leave;
(ii) parental leave, or
(iii) time off under section 57A of the 1996 Act;"

9. An employee whose employer unreasonably refuses a request for time off may, under s57A, make a complaint to the Employment Tribunal under s57B; but if the employer takes action against an employee for a prescribed reason, the employee has an alternative avenue of complaint pursuant to section 48 of the Act.

The Issue

10. Mrs Harrison made a complaint under section 57B; but it was out of time, the relevant period being three months from the date of the refusal of leave. However the relevant three-month period for a complaint under s48 ran from the date of the action complained of, i.e. the warning; and therefore Mrs Harrison's complaint under that section was in time. Thus, the Tribunal had before them only a complaint under s47C and not a complaint under s57B. However, it is not suggested that the essential decision which the Tribunal had to make was in any way different from that which they would have had to have made under s57B. There was no dispute that Mrs Harrison had been subjected to a detriment, i.e. the warning for not working on 22 December. The reason for subjecting her to that detriment could only be a prescribed reason if she had taken time off within s57A(1)(d).
11. The Tribunal had, therefore, to decide whether she was entitled to be permitted to take that time off under that provision. Indeed, the issue can be expressed more narrowly; for no question of taking an unreasonable amount of time off arose. The issue was whether it was necessary for Mrs Harrison to take time off on 22 December because of the unexpected disruption of arrangements for the care of her children. We emphasize the word "unexpected" because it has been the focus of the arguments before us and was no doubt, together with the word "necessary", the focus of the Tribunal's attention, once the facts had been found.

The Tribunal's Decision

12. The Tribunal's conclusions are set out in concise terms, in paragraphs 18 to 25 of their judgment, as follows:

"18. The amount of time off that Mrs Harrison had taken in the year so far had not been inordinate, it was not sufficient to make the time for which she sought leave unreasonable. The issue of the respondent's resources at the time are irrelevant to the question of whether Mrs Harrison should have been allowed time off, but such issues were clearly prevalent and determinative in the mind of the respondents.

19. Mrs Harrison expected to have cover in place on 22 December 2006. She was informed by her childminder on 8 December that this was not so. At that point the unavailability of a child minder was unexpected. Now we appreciate that at some point, the period of lapse of time before and occurrence in question makes that occurrence expected rather than unexpected. For example, Mrs Harrison had been told in July that cover would not be available in December, she could not say that it was unexpected. However, at this point, 8 December, exercising our common sense and industrial experience, we find the unavailability of a child minder was unexpected.

20. We do not accept the respondent's argument, quoting Hansard, that these provisions only relate only to a situation such as a childminder not turning up on the day in question. The statute is not couched in such terms.

21. At the point when Mrs Harrison was told on 8 December by her childminder that she would be unable to look after her children on 22 December, that unavailability is unexpected and the right to time off is crystallised subject to he duty to inform her employer. Over the next four days Mrs Harrison pursued all avenues she could to resolve her problem. When she could not, she informed the respondents of that, she did so in our view, as soon as it was reasonable practicable. Until the last childminder said no, she did not know that she needed the time off. She informed them that she needed just the one day only and so she fulfilled her obligations udders subsection 2(A). At that point she was entitled to time off. Inconvenience to the respondents has no bearing.

22. The respondent refused Mrs Harrison time off and because she had no choice, she stayed at home with her children. Had she not done so she would not have been given a verbal warning, which thankfully has expired without any adverse consequence. The warning is a detriment. That much the respondent has conceded. The 'act' within s47C is the warning; the prescribed reason is that she took time off to look after a dependent to which she was entitled pursuant to Section 57.

23. We do not accept the respondent's argument that the reason for the warning was the failure to report it. Even if that were the reason, and not her unauthorised absence, the suggestion that the Sickness Absence Policy applies in these circumstances is, it seems to us, nonsense. There is no contractual duty a duty to report in and in any event, Mrs Harrison told management the night before that she would not be coming in.

24. From the evidence it is clear that the reason for the warning was that the respondents did not accept that she was entitled to time off and we find that she was. Accordingly, the claim succeeds.

25. Mrs Harrison does not seek compensation, she merely seeks a declaration. Accordingly, we declare that Mrs Harrison' complaint that she had suffered a detriment contrary to Section 47C by reason of exercising her right to time off to look after dependants succeeds."

The Submissions

13. Ms Bell of RBS's solicitors has appeared on behalf of RBS. Mrs Harrison has represented herself, with the assistance of her husband. We are grateful to both for their clear and concise submissions. We can summarise Ms Bell's submissions, we hope without disrespect, in this way:

(1) Section 57A was inserted into the 1996 Act in 1999 in order to incorporate into domestic law (as the United Kingdom was required to do) the provisions of the European Community Parental Leave Directive 96/34 which, in effect, consisted of a Framework Agreement annexed to the Directive. The Directive did not require member states to introduce into domestic law more than the minimum requirements of the Directive.

(2) Those minimum requirements were that parental leave, as distinct from maternity leave, should be available on grounds of force majeure (see paragraph 9 of the preamble to the Framework Agreement and paragraph 3 of part 2 and clause 3(1) of the Agreement).

(3) Force majeure is defined in the Oxford Companion to Law as:

"Irresistible compulsion or coercion, a phrase used in commercial documents and having a wider meaning than act of God. A force majeure clause must always be construed with close attention to the words preceding and following and with due regard to the nature and terms of the contract."

(4) Whilst it is recognised that paragraph 4(1) of the Framework Agreement provides that member states may introduce more favourable provisions than those set out in the Agreement, reference to Hansard which, under the principles set out in Pepper v Hart [1993] ICR 291, should be permitted in the context of this appeal, demonstrate that Parliament did not intend to make provisions wider than the minimum required by the Directive to such an extent as to permit Mrs Harrison's case to fall within s57A(1)(d) having regard to the 2 weeks which passed between the date when the childminder told Mrs Harrison of the problem and the date when that problem was actively going to have a practical effect. If reference is made to what was said by Lord Sainsbury of Turville in Hansard for 8 July 1999, it will be seen that the parliamentary intention was to restrict the availability of s57A(1)(d) to cases of true emergency.

(5) This approach was not only consistent with but was supported by the guidance document "Time Off for Dependents" issued by DBERR.

(6) All of this material demonstrated that the words of the relevant statutory provision must be construed so that s57A(1)(d) applies only to situations which arose suddenly or in an emergency. While no such words appeared in s57A(1)(d) or in s57A(1) at all, the correct way to construe s57A(1)(d) was by the insertion before the word "unexpected" of the words "sudden and". Without such a construction of the words, the intention of Parliament would not properly be reproduced and fulfilled.

(7) If the statute was properly construed, then it could be seen that Mrs Harrison's case did not fall within the statute and, thus, the decision in her favour made by the Tribunal was reached in error of law.

14. Ms Bell, in her admirable Skeleton Argument which she spoke to before us today, referred us to two authorities on s57A, namely Qua v John Ford Morrison Solicitors [2003] IRLR 184 and Cortest Limited v O'Toole EAT/0470/07, judgment given on 7 November 2007; but Ms Bell accepts that neither of those authorities involves the point now for decision. They do, she submits, nonetheless provide some assistance in what would appear otherwise to be a green field situation.
15. Mrs Harrison, as we have said, has not been represented. She has submitted that:

(1) the intention of s57A was to provide an entitlement to the employee to time off in circumstances as defined by the words in the statute which do not include the word "sudden" or any word which has the effect of the word "sudden".

(2) It is apparent from both the terms of the Directive and the terms of s57A, that the domestic provision is of wider application than the Directive. In particular, the Directive at clause 2(3)(1) is limited to cases of sickness and accident, which the domestic provision self-evidently is not.

(3) Hansard supports the application of s57A(1)(d) to her case.

(4) Therefore the Tribunal were entitled to find as they did. The situation was, as the Tribunal found, unexpected. The Tribunal's findings were that Mrs Harrison had done everything possible to find alternative care but had failed and therefore, as the Tribunal found, it was necessary for her to have time off. She fell precisely within the rules of the statute.

The Authorities

16. In Qua, the Employment Appeal Tribunal, presided over by Mrs Recorder Cox QC, had to consider the employee's appeal against the rejection of her claim that she had been automatically unfairly dismissed for taking time off work under s57A(1)(d). Her claim had failed because she had not told her employers as soon as practicable that she was going to need that time off, as is required by s57A(2), and because she had not restricted her absence from work to a reasonable amount of time off in order to take action necessary under s57A(1)(d).
17. It is important to note that neither the Employment Appeal Tribunal nor, it would seem, the Tribunal in that case, had to consider any of the points which now arise as to what may fall within the correct meaning of "unexpected" or whether "unexpected" should be construed as meaning "sudden and unexpected", as Ms Bell submits; and the Employment Appeal Tribunal's judgment must be read with that in mind. At paragraph 12 of its judgment, the EAT referred to the introduction of s57A into domestic law in order to comply with the Directive. At paragraph 13, it said that assistance in interpreting the domestic provisions could be derived from the Framework Agreement. At paragraphs 15 to 17, the Employment Appeal Tribunal said:

"15. By way of general observation, and having regard to the Directive and in particular the use of the words 'force majeure' when referring to time off from work during working hours, we agree with the tribunal's conclusions at paragraph 22 as to the nature of the absences contemplated in this section. The statutory right is, in our view, a [2003] IRLR 184 at 188 right given to all employees to be permitted to take a reasonable amount of time off work 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.

16. The right to time off to '… provide assistance' etc in subsection (1)(a) does not in our view enable employees to take time off in order themselves to provide care for a sick child, beyond the reasonable amount necessary to enable them to deal with the immediate crisis. Leave to provide longer-term care for a child would be covered by parental leave entitlement if the employee has responsibility for the child and is entitled to parental leave (that is, has at least one year's service). That does not arise in the present case because the appellant had only been employed for nine months at the time for her dismissal. Section 57A(1)(a) envisages some temporary assistance to be provided by the employee, on an occasion when it is necessary in the circumstances specified. Under subsection (1)(b), time off is to be permitted to enable an employee to make longer-term arrangements for the care of a dependant, for example by employing a temporary carer or making appropriate arrangements with friends or relatives. Subsection (1)(d) would include, for example, time off to deal with problems caused by a child-minder failing to arrive or a nursery or playgroup closing unexpectedly.

17. The right is a right to a 'reasonable' amount of time off, in order to take action which is 'necessary'. In determining whether action was necessary, factors to be taken into account will include, for example, the nature of the incident which has occurred, the closeness of the relationship between the employee and the particular dependant and the extent to which anyone else was available to help out."

Then the Employment Appeal Tribunal turned to deal with what was a reasonable amount of time off work, in passages which are not relevant for today's purposes.

18. In Cortest, the EAT, presided over by Nelson J, had to consider a number of issues. One was whether the Tribunal had been in error of law in determining that a father's request for "a month or two" of unpaid leave to look after his children, when his partner had unexpectedly left home, was a request to take off a reasonable amount of time because s57A is intended to deal with short-term emergencies. At paragraph 22, having considered Qua, the EAT said this:

"22 We are satisfied that Mr Howarth's submissions are correct on the law and that the Employment Tribunal fell into error in both their interpretation and application of s.57A(1)(d). The purpose of the legislation is to cover emergencies and enable other care arrangements to be put into place. These cases are all fact sensitive but a period as long as one month or even longer for care by a parent would rarely, almost never, fall within s.57A and cannot on the facts before the Tribunal have done so here. If longer leave is required than a short period of unpaid parental leave is available but that was not so here because it is not available for emergency situations and a request has to be put in writing. We are satisfied that one month especially where there is no evidence that any other arrangements were sought, for example, neighbours or other relatives or any other kind cannot be reasonable on the facts as found by the Employment Tribunal. They were in error in law, as we have said, in interpreting and applying s.57A. We have no doubt given the facts before them that they felt a strong sympathy towards Mr O'Toole and Ms Hyde for the predicament for which they found themselves but that is not a reason for extending what is intended to be the time for putting in place other care which the section under the Act provides for. As there was no absence under s.57A the dismissal cannot have been automatically unfair under the Maternity and Parental Leave Regulations 1999. We substitute for those of the Tribunal our findings that the request did not fall within s.57A of the Act.

23. As to ground 3 we are also clear that s.57A does not permit a parent to become the child minder for a period as long as occurred here, just short of one month, when the maximum period thought to be possible was two months but it is, as s.57A intended, to give the parent the breathing space to enable a replacement carer to be found. Here the Respondent made it clear that he was to be the carer and Ms Hyde has said that there was no other option open to them. Paragraphs 15 and 16 of the case of Qua are again relevant as indeed is the guidance and we are satisfied that s.57A also does not apply here for this reason."

19. However, no issue as to the meaning or application of the word "unexpected" or "necessary" arose in that case. Indeed, the present case is, so far as we are aware, the first occasion on which the issue before us has been considered, at least at an appellate level. Ms Bell has done some research into whether there has been any decision at an Employment Tribunal level and has not been able to find any such decision.

Our Conclusions

20. (1) We are not persuaded by the references made to the Directive and the Framework Agreement that the Tribunal erred in law in concluding that Mrs Harrison's claim fell within s57A(1)(d). It is indisputable and undisputed (i) that Parliament was entitled to provide statutory protection on a wider basis than the minimum required to be provided by the Directive and (ii) that Parliament did provide such protection on a wider basis by not restricting that protection to cases of sickness or accident making the immediate presence of the worker indispensible or to cases of force majeure, if that expression is narrower than the word which Parliament used, namely, "necessary". While we respectfully agree with the Employment Appeal Tribunal's view in Qua that the Directive should be considered as a source of guidance as to the interpretation of the words in s57A, (a) the Directive is no more than guidance and (b) it does not, in our judgment, contain any words which shed much, if any, light on the meaning of "unexpected", which is not a word to be found in the Directive. Once Parliament has decided, as it admittedly did, to provide a level of protection beyond the minimum provided by the Directive, when the Directive does not attempt to state or recommend how much further a member state can go, the force of the Directive's terms is, when the domestic provision plainly goes further than the minimum required by the Directive, unlikely to be great and, in our judgment, is not great in this case.
21. (2) Section 57A does not use the words "force majeure" which, as the definition on which Ms Bell relied shows, is an expression normally to be found, in the English legal setting at least, in commercial contracts or in insurance contracts. The element of irresistible compulsion or coercion, which is the essence of force majeure, is in s57A represented by the word "necessary". That is a straightforward and common word requiring no definition or interpretation. It is for the Tribunal to determine, if there is an issue about it, on the facts of each case whether the action which the employee wishes to take or took (in the present case, staying at home to look after her children) was necessary because of the unexpected disruption or termination of arrangements for the care of a dependant. In considering whether it was necessary for the employee to take that action, the Tribunal is able to take into account all relevant circumstances, including considerations of urgency and time. We will return to this shortly.
22. (3) Although the DBERR guide gives, at page 5, the example on which Ms Bell relies, i.e. a case in which a childminder or nurse may fail to turn up as arranged, contrary to paragraph 32 of Ms Bell's skeleton the guidance does not suggest that only such an example could fall within the statutory provision. Indeed, as Mrs Harrison pointed out, the guide gives another example of a nursery or nursing home closing unexpectedly which could include a case in which some but short notice is given of such an event, it being highly unlikely that a nursery or nursing home would simply close without any notice to anyone.
23. These are only examples of circumstances which, according to the guidance, fall or may fall within the statutory words; the guidance does not attempt to provide any definition of or limitation upon those statutory words and does not suggest that, if a specific period of time passes between the date on which the employee learns of the forthcoming disruption of care arrangements and the date on which that disruption actually occurs, the disruption is not unexpected or that the word "unexpected" should be construed (as Ms Bell seeks to persuade us) as "sudden and expected".
24. (4) We are in considerable doubt as to whether the necessary pre-conditions, as set out in Pepper v Hart for it to be permissible to consider Parliamentary material are made out; "unexpected" could properly be said not to be an ambiguous word but a generally used word; but assuming that the material put before us can be considered we do not regard it as providing valuable assistance. What was said before or after the proposal of the relevant amendment or what was said in the House of Commons we simply do not know; and we do not regard what Lord Sainsbury said as constituting a clear statement that the law was intended to be as Ms Bell submits it should be. It is clear that Parliament intended to provide protection on a wider basis than the Directive. That was recognised at column 1084. At column 1085, the words used are:

"Employees will be able to take time off in the event of the unexpected absence of the carer, where the person is a dependent of the employee."

Those words are very wide. The example of the childminder or nurse not turning up is then given; but it is not said that that is the only situation to which the protection is intended to apply. On the other hand, there are references to the protection being to help people deal with emergencies, without any attempt to define what an emergency is. We gain little, if anything, from the words of Lord Sainsbury (assuming in favour of RBS that we are entitled to look at them at all) for the reasons which we have set out.

25. (5) For the reasons we have already set out, the two previous decisions of the EAT do not materially assist; they were addressing different questions and not the correct meaning and application of the word "unexpected" or whether it should be construed as "sudden and unexpected"
26. (6) Essentially, RBS's challenge to the Tribunal's decision in this case is based on their argument that, in assessing whether the disruption was unexpected, the Tribunal must consider the time that has passed between the employee's learning of the forthcoming disruption and the disruption taking effect.
27. In our judgment, in deciding whether, in an individual case, an employee is entitled to take time off under s57A(1)(d) the Tribunal is entitled to take into account the time which passes between the employee becoming aware of the risk of the relevant disruption and that risk becoming fact; but that element of time is, in our judgment, primarily relevant to and will be considered by the Tribunal as part of the question whether it was necessary for the employee to take that time off. In the context, the word "necessary", in our judgment, embodies the temporal relationship or factor which Ms Bell submits must be found in the statutory words to protect against abuse. The longer the time between the employees' learning of the risk of disruption and the time when that risk becomes fact, the greater the time in which the employee can explore alternative arrangements. If an employee has not taken appropriate steps to make alternative arrangements and has had sufficient time in which to do so, the Tribunal is unlikely to find as a fact that it was necessary for him or her to take the time off. If the time which has passed between learning of the risk and the risk becoming fact is very short, then it will be easier for the employee to establish that it was necessary for him or her to take the time off but there can be no hard and fast rules.
28. The obvious principle that the greater the time to make alternative arrangements, the less likely it will be that necessity will be established, hardly needs to be stated. It is for the Tribunal in each case to find on the facts whether necessity has been established. Many factors will come into their consideration; for instance the nature of the disruption, the availability of alternatives, finance and time. That is not intended by us to be an exhaustive statement of potentially relevant factors; but necessity is, as we have already said, an ordinary word and the Tribunal will simply have to find in each case, including in their decision-making process considerations of time, if time is relevant, whether necessity is or is not established.
29. In our judgment, the word "unexpected" does not involve a time element. We ask rhetorically, when is the unexpectedness of the disruption or termination of the arrangements for care to be assessed? On a literal approach, by the time the employee starts trying to make alternative arrangements because he has learnt of the forthcoming disruption and a fortiori when he tells the employer about the problem, that disruption is no longer unexpected. It is only unexpected (if it is unexpected at all) at the moment when or the moment before the employee learns of what is about to happen; and we see no reason to incorporate some temporal content into the word "unexpected" which is also, as is "necessary", not a term of art or a legal word but an ordinary word to be construed according to its natural meaning. Still less is there, in our judgment, any justification for seeking to import into straightforward statutory words words which are simply not there and which contain a requirement which parliament did not enact, as Ms Bell seeks to do.
30. For these reasons we conclude that the Tribunal made no error of law in reaching their decision, which was open to them on the facts.
31. Lastly, even if we were to be wrong about that, we do not think that it could be said that the Tribunal, in concluding that the problem for 22 December was unexpected and that it was necessary for Mrs Harrison to take the time off, even if one incorporated words such as "sudden" or "in emergency" into the statute, reached a conclusion which was contrary to law. On the facts of this case, they would, even with that limitation, have reached a decision which was plainly open to them and was not perverse.
32. For those reasons, this Appeal is dismissed.