The EAT has held that a woman who was given advance notice of the unavailability of her childminder and stayed at home to look after her children had exercised her right to take time off to care for a dependant.
All employees have the right to take time off to care for a dependant in certain circumstances including when the arrangements for the care of a dependant are 'unexpectedly' disrupted.
In this case the EAT held that this can include where the employee has advance notice of the unavailability of childcare. Accordingly, employers will need to be aware that the scope for employees to be able to take time off from work has been widened.
Therefore, policies on employees taking time off should be reviewed to ensure that they meet this wider definition and employers should consider the circumstances of the employee and the availability of alternative childcare when faced with requests for time off to care for dependants.
In the case of Royal Bank of Scotland v Harrison, the EAT considered the case of Ms Harrison, who was given two weeks notice by her regular child minder, that she would be unavailable on a specific date. Ms Harrison tried to make alternative arrangements for the care of her two young children but neither her husband or other child minders were able to assist. She therefore asked her employer (RBS) if she could take the day off to care for her children. One week later and only two days before the childminders absence, RBS then informed Ms Harrison that her request had been refused. Ms Harrison however took the day off to care for her children anyway and subsequently was disciplined by RBS for doing so. Ms Harrison brought a claim that she had been subjected to a detriment for taking the time off.
RBS argued that Ms Harrison was not covered by the statutory protection because she had advance notice of her child minders unavailability. However, the EAT disagreed and held that 'unexpected disruption' did not have a defined time attached to it nor did it exclude the situation where the employee learns of the disruption in advance.
In the EAT's view whether it is necessary for the employee to then take the time off will depend upon the facts of each case and the efforts the employee has taken to make alternative arrangements.