The EAT has ruled that the right to time off to deal with unexpected disruption to care arrangements is not limited to cases of sudden, last minute problems.
In Royal Bank of Scotland v Harrison, the Employment Appeal Tribunal ("EAT") was asked to consider the scope of one particular element of the right to take time off to deal with dependant problems.
Section 57A of the Employment Rights Act 1996 provides that employees are entitled to take a reasonable amount of time off during working hours in order to take action which is necessary for a variety of reasons, including where such is necessary "... because of the unexpected disruption or termination of arrangements for the care of a dependant" (section 57A(1)(d)). "Dependant" includes a child of the employee.
At the relevant time, Mrs Harrison was employed as a part-time claims advisor. Her husband ran his own small business with one supporting employee. They had two young children, aged 5 and 1. On the days that Mrs Harrison worked, the children were looked after by a childminder. On 8th December 2006, the childminder advised the Harrisons that she was unable to look after the children on 22nd December 2006. This was unexpected. Over the following days, the Harrisons attempted to arrange alternative cover for 22nd December 2006, including enquiring of family members and other childminders. No alternative could be identified and Mr Harrison was unable to cover, as his supporting employee was also going to be absent on the relevant date. On 13th December 2006, Mrs Harrison advised her manager of the problem and sought permission to take 22nd December 2006 off. Mrs Harrison had thought that this was agreed in principle but, on 20th December 2006, Mrs Harrison was instead told that she was needed at work on 22nd December 2006 and that her failure to attend would be treated as unauthorised absence. Mrs Harrison stayed at home with her children on 22nd December 2006 and was thereafter disciplined for having done so, being given a verbal warning.
Mrs Harrison brought employment tribunal proceedings, alleging that she had suffered a detriment (the verbal warning) for having exercised her right under section 57A(1)(d) of the Employment Rights Act 1996. The employment tribunal upheld that claim but her employer, RBS, appealed to the EAT.
The central issue in the appeal was RBS' lawyers' argument that the right conferred by section 57A(1)(d) should be read in such a way as to make it limited to only those cases where the disruption in care arrangements was "sudden" as well as unexpected. In summary, RBS' lawyers sought to argue that such was consistent with the more narrow approach of the European Directive from which section 57A of the Employment Rights Act 1996 derived and that it was the intention of Parliament that the right should be limited to only those cases of last minute emergencies. In this case, RBS' lawyers argued, the fact that Mrs Harrison received two weeks' advance warning of the disruption meant that her time off was not in relation to such a sudden emergency and therefore she had had no right under section 57A(1)(d) to take time off on 22nd December 2006.
Not surprisingly, the EAT gave this argument short shrift. Although it was agreed that section 57A was wider in scope than the relevant European Directive, the EAT concluded that there had been nothing to prevent the UK from introducing domestic legislation that was more generous to employees than guiding European legislation and also that it could not be concluded from the relevant Parliamentary materials that Parliament had intended for section 57A to be interpreted more narrowly than its plain existing wording suggested. It was therefore not necessary to limit the application of section 57A(1)(d) to only "sudden" disruptions.
The EAT further concluded that the unavailability of the childminder on 22nd December 2006 was an "unexpected" disruption and that the delay between 8th and 22nd December 2006 did not change that. Rather, the EAT concluded that the delay between knowledge of the disruption and the date of the disruption itself was not relevant to whether an event was unexpected but was instead relevant to the issue of whether the time off had been "necessary"; the longer the period of advanced warning of a disruption, the more time the employee will have to make alternative arrangements and therefore it becomes less likely that time off work is necessary. On the facts of this case, the EAT concluded that the amount of delay did not make the time off on 22nd December unnecessary.
This case serves as a useful reminder to clients that the right to take time off work when an employee's childcare arrangements are disrupted is not limited only to those cases where the disruption is a last minute emergency. The key issues are whether the disruption is unexpected and whether taking time off is a necessary response. As the EAT stressed in the above case, "there can be no hard and fast rules" - each case will be entirely fact specific depending on the particular circumstances of the individual employee. A particular recommendation to arise out of this case is to avoid delay and uncertainty when responding to an employee's request for time off; in this case, a key fact was that Mrs Harrison had the impression on 13th December that there would be no problem with taking 22nd December off and it was not until a week later, on 20th December 2008, that she was told she could not have the day off, at which point the day of disruption was imminent. It is possible that the matter may have had a different outcome if Mrs Harrison had been told on or around 13th December 2008 that she was expected to work and therefore had a further week in which to redouble her efforts to make alternative arrangements.