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1. The matter before the Employment Appeals Tribunal was a claim by the Appellant to be entitled to a force majeure leave pursuant to Section 13 of the 1998 Act. This is a new concept introduced into Irish Law pursuant to Council Directive 96/34/EC. The entitlement is set out in Section 13(1) as follows:-

2. Among the persons specified in sub-section (2) is the spouse of the employee.

3. The events which led up to the Appellant’s claim are not really in dispute. In the early hours of 31st March, 1999 the Appellant’s wife became violently ill and vomited repeatedly. She gave evidence to the Tribunal that the vomiting ceased at about 10.00 a.m. or 11.00 a.m. but she was in and out of the bathroom throughout the day until about 3.00 p.m. They had a baby of under twelve months old and she said she could not have minded the baby, who is on a special diet. She said she might have been able to go up and down the stairs but that she had been extremely weak and might have passed out. She was questioned by one of the members of the Tribunal as to why she had not called a doctor, and said that she knew that it was a stomach bug. The Respondents argued before the Tribunal that normal routine illnesses were not covered by the section and that this episode of illness had not required medical attention and did not require the attention of another adult, namely the Appellant.

4. The determination of the Tribunal by a majority decision was :-

5. The dissenting member of the Tribunal stated that he believed that the Appellant’s presence was indispensable that morning and went on to find:-

6. It should be said that a Rights Commissioner had previously reached the same conclusion as the majority decision of the Tribunal.

7. The Appellant relied strongly upon the decision of Carroll J. in Carey -v- Penn Racquet Sports Limited (2000) E.L.R. 27 where the facts were similar to the present case. In that case the Appellant was a single mother whose eight year old child developed a rash overnight. She had a child-minder but she decided that she should stay with the child, and she took her to a doctor in the morning, and then had to travel to a Chemist shop to purchase calamine lotion for the child. The Employment Appeals Tribunal accepted that she was concerned about her child’s health, but held by a majority that the particulars of the case did not fall within the Act as being urgent, immediate and indispensable. Carroll J. allowed the Appeal and said that page 32:-

8. This is clear authority that the Tribunal must judge whether the facts of a particular case come within Section 13 but that such judgment must be based on the facts as they existed at the time of the circumstances which it is alleged gave rise to the implementation of the Section. The case concluded that it is an error of law to view these circumstances with hindsight and to take into account the ultimate seriousness or otherwise of the illness. I am quite satisfied this is a correct interpretation of the section, and I am also satisfied that it was a question of law as to whether the Tribunal could make a decision on the basis of the ultimate outcome of the illness. The decision does, of course, depend upon the finding by the learned Judge that the reason the force majeure leave was refused was that the rash ultimately turned out not to be serious, and that the Tribunal’s decision was based on hindsight.

9. I must emphasise that the only appeal to the Court under the Act is on a question of law. I am quite satisfied that it is a question of fact as to whether the Appellant’s immediate presence was or was not indispensable, although the Tribunal must determine that fact only by looking at the circumstances that were known at the time the Appellant decided to stay at home. It is not open to this Court to look at those circumstances and decide that this Court would have reached a different decision, provided the Tribunal did not err in law in the manner determined in the Carey case. I leave open the question of whether it could be argued under the section that the decision reached was one which no reasonable Tribunal could have reached on the facts, as that argument was not raised before me, nor indeed could it have been in the present case.

10. I do not think I can take the same inference from the facts of this case or the decision of the Tribunal that Carroll J. took in the Carey case. The evidence in this case is that the illness was not considered by the Appellant or his wife to be a serious illness or indeed one which required the attention of a doctor. Thus the seriousness or otherwise of the illness was not determined by the Tribunal with hindsight, but had been determined by the parties themselves at the time of the illness. Undoubtedly the Appellant’s wife suffered a very unpleasant, and probably debilitating, experience, and undoubtedly it was of great assistance to her to have her husband present. However, the question of whether the Appellant’s presence was indispensable is one which must depend on the facts of the individual case. The fact that his wife suffered from what has been called a stomach bug could in some circumstances render his presence indispensable, while in other circumstances it would not be indispensable. The Tribunal is the sole arbiter of fact, and heard evidence from witnesses who were cross-examined, and on that evidence it made a determination that the Appellant’s presence was not indispensable. In my view that is a pure question of fact decided on the evidence, and there is nothing to suggest or from which I could draw the inference that the Tribunal applied wrong principles in making their decision. Accordingly, I do not feel there is a question of law involved which would warrant an appeal under Section 20 of the Act and I must refuse the Order sought.