Employment Contractsby Kate Russell
Employees and their dependants
An employee has the right to reasonable unpaid time off work to deal with an emergency involving a dependant. The right to time off for unforeseen circumstances that affect dependants is available to all those who have a contract of employment with an employer, whether they work full time or part time. There is no service qualification.
In what circumstances can an employee take time off?
An employee has the right to take time off to deal with unexpected problems and to make any necessary arrangements for the future. For example:
If an employee’s dependant falls ill or has had an accident or has been assaulted; the dependant has to have been involved in a situation that has caused him hurt or distress
- When an employee’s partner is having a baby
- When the employee has to deal with an unexpected hiccough in normal care arrangements – for example, if his child-minder doesn’t turn up when expected
- When the employee has to deal with an incident that involves his child during school time – for example, if the child has been involved in a fight or is being suspended from school
- If the employee needs to make longer-term arrangements for a dependant who is ill or injured
- If the employee has to deal with the death of a dependant – for example, to make funeral arrangements or to attend a funeral.
In the following case, the Employment Appeals Tribunal (EAT) considered the scope of qualifying actions for time off work taken in consequence of the death of a dependant.
F was employed by CB for a period of less than one year. At the start of her employment, she took five days’ sick leave. Months later, she took 12 days’ paid bereavement leave following her father’s death. Then, a few months later, her mother died and she took five days’ bereavement leave. When this period expired her doctor signed her off for a total of four weeks.
F’s employer dismissed her because of her period of absence following her mother’s death and her general absence record with the firm.
F lacked the one year’s continuous service required to claim unfair dismissal. Instead, she alleged that she had been unfairly dismissed because she was dismissed for an inadmissible reason; in other words because she took time off in consequence of a dependant’s death.
The EAT dismissed her claim on the basis that F’s absence from work after her mother’s death did not fall within the definition of ‘an action which is necessary in consequence of the death of a dependant’. The EAT held that necessary actions covered by the legislation include (but are not limited to) making arrangements such as funeral organisation, funeral attendance, registering death and applying for probate.
The EAT did acknowledge that a dependant’s death will lead to sadness, bereavement and unhappiness, but there is no legal right to compassionate leave as a result of bereavement.
Employers should consider the impact of not providing time off to an employee in such a time of need and the impact on the relations with the employee if they deny time off requested on this basis.
Who is considered to be a dependant?
Dependants are people who rely on the employee for assistance, such as spouse or partner, parent or child. It may include someone who depends on the employee from time to time, for example, an elderly neighbour. It does not include tenants or boarders living in the family home, or someone who lives in the household as an employee, such as a live-in housekeeper.
How much time off can be taken?
No limit to the amount of leave has been set. Usually, it will be one or two days, but it will vary according to the particular circumstances and the relationship of the employee with the dependant. Some guidance was provided by the EAT in the following case.
Q was employed as a legal secretary by JFM from January 2000. On 27 October 2000 she was dismissed because of her high levels of absence. Q complained that she should not have been dismissed on the grounds of her absences as these were caused by her having to take time off to care for her son who had medical problems. She claimed that she was entitled to that time off under the dependency leave provisions and that her dismissal was automatically unfair.
An employment tribunal dismissed Q’s complaint on the grounds that her absences did not count as dependency leave because she had failed to inform JFM of the reasons for her absence as soon as reasonably practicable and/or for how long she expected to be absent. Q appealed.
The EAT set out guidance for the application of the dependency leave provisions.
- The right is for an employee to take time off to ‘provide assistance’. This does not allow an employee to take time off to care for a dependant personally, except to the extent that this is necessary to deal with an immediate crisis.
- An employee must comply with the notice provisions in order to claim protection. A decision as to whether there has been compliance must be taken with regard to each instance of leave.
- In determining whether time off was necessary, a number of factors will be taken into account. These include the nature of the incident that has occurred, the closeness of the relationship between the employee and dependant and whether anyone else was available to care for that dependant.
- The amount of time that it is reasonable for the employee to take will depend on the circumstances in each individual case. It will always be a question of fact for the tribunal and it is not possible to lay down a maximum reasonable period.
- An employer is entitled to take previous dependency leave into account when determining whether an employee’s absence is necessary and reasonable.
- Time off is permitted when a dependant ‘falls ill’. This does not permit an employee to have an unlimited amount of time off. This is so even if the employee complies with the notice requirements each time and only a reasonable amount of time is taken on each separate occasion. The provision does not apply once it is known that the dependant is suffering a particular medical condition and is likely to suffer recurring illness.
However, you should note that an employer is not entitled to take into account any disruption suffered by the business as the result of the employee’s absence. Such inconveniences are irrelevant. To hold otherwise would be to undermine the purpose of the legislation.
Absence which is genuine and properly recorded as time off to care for a dependant should not count against an employee in any way. Naisbett v Npower Limited  demonstrates that giving an employee a first stage warning for absence relating to time off for dependants amounts to a detriment. In that case Ms Naisbett was awarded £1000 in compensation due to Npower subjecting her to an absence warning when she had taken seven days off for a dependant during a 12 month period.
How frequently can an employee exercise this right to time off?
The right is intended to cover genuine emergencies. No limit on the number of times an employee can be absent from work under this right has been set.
The new right is generally for unforeseen matters, but the courts have recently given guidance on this point and said that the right arises where it is ‘necessary’ for the employee to rake time off
H, a part-time employee and mother of two, was given two weeks’ notice by her childminder that she could not work on a specific day. She tried to make alternative arrangements, but was unsuccessful. A few days later, she told the her employer, RBS, that she would need to take the specified day off work. A week later, RBS told her that her request had not been granted as it could not find someone to cover for her. Her manager told her that if she took the day off the absence would be unauthorised. Without a replacement childminder, H had to take the day off work. This resulted in a formal disciplinary warning, which she unsuccessfully appealed against.
H complained that she had suffered a detriment due to exercising her statutory entitlement to time off. The court held that even though she had two weeks to make alternative arrangements for her childcare, the unavailability of her normal childminder was ‘unexpected’ when she made the request and the time off was ultimately ‘necessary’ as a result of that unexpected unavailability.
The courts are clearly prepared to construe the right very broadly. Even where the requested time off work is some way off, the disruption or termination of the childcare arrangements may still be ‘unexpected’ and the time off may still be ‘necessary’.
In dealing with such cases, make sure that you act promptly when responding to requests for time off work to care for dependants. Gather all the facts before making a decision. These absences are often referred to as ‘emergency leave’, but bear in mind that time available to the employee to make other arrangements is not the only factor when considering whether it is necessary for the employee to take the time off work.
Employees need to tell their employers the reason for their absence and how long they expect to be away from work as soon as practicable. In the Truelove case (see below), the EAT held that employers are not entitled to demand detailed explanations of the reason why an employee can not attend work.
There may be exceptional circumstances where an employee returns to work before it has been possible to contact the employer, but he should still tell the employer the reason for the absence on returning.
T had to work on some Saturdays. He became aware that his wife would also have to work on a specific Saturday and that their usual childminder would not be able to look after their young daughter on this day. As a result, T asked for the day off as annual leave a fortnight before it was required. This request was refused due to staff cover problems. T made alternative arrangements, but these fell through the day before the child needed to be looked after. T mentioned to his manager on the Friday that it was possible he would need to take the following day off to look after his young child. Once T knew that he would be required to stay at home to look after his daughter, he asked another manager for the time off but didn’t mention that it was because child care arrangements had fallen through at the last minute. His request was refused.
T was disciplined for taking unauthorised leave and lost his entitlement to a bonus of approximately £250. He complained that he had been unreasonably refused time off for dependant care leave.
The EAT said that the Act was aimed at helping people who were faced with sudden and difficult situations in respect of a dependant, in this case a child. In this situation, all that had to be communicated by the employee was enough information for the employer to understand that something had happened to cause what had been a stable arrangement in relation to a dependant to be disrupted, and that as a result of this the employee would have to leave work urgently. The EAT also held that in this case Safeway Stores had received sufficient information between the various managers to determine that the statutory right to dependency care leave had been engaged.
What if you think that an employee is abusing the right?
Employers who think that an employee is abusing the right to time off should deal with the situation according to their normal disciplinary procedures.
Can you ask to see evidence?
There is no statutory requirement for employees to produce evidence, either of the actual incident or their relationship to a dependant.
It is unfair to be dismissed or selected for redundancy for taking, or seeking to take, time off under this right.