In recent years employees have found themselves with an increasing number of rights to take time off work. A recent case has looked specifically at taking time off for the care of a dependant and has exposed some of the more problematic issues which employers may find themselves facing.
Time off for dependants
Since 1999 employees have had the right to take a reasonable amount of time off work in order to take action for the care of their dependants. This right is set out in Section 57A Employment Rights Act 1996 (ERA 1996) which provides that the time off work may be taken in the following circumstances:
- to provide assistance on an occasion when a dependant falls ill, gives birth or is injured or assaulted;
- to make arrangements for the provision of care for a dependant who is ill or injured;
- in consequence of the death of a dependant;
- because of the unexpected disruption or termination of arrangements for the care of a dependant; or
- to deal with an incident 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.
A dependant is defined as a spouse (or civil partner), child, parent, or a person who lives in the same household as the employee (excluding a tenant, lodger or boarder).
In order to exercise the right, the employee must tell the employer as soon as is reasonably practicable the reasons for the absence and how long he or she expects to be absent from work.
If an employee has been unreasonably refused permission to take time off, then he may complain to an employment tribunal. The time limit for such a complaint is three months beginning on the date the refusal occurred. In addition, an employee has the right not to be subjected to any detriment by any act or deliberate failure to act by his employer done for a prescribed reason, one of which is a reason related to time off for dependants.
Royal Bank of Scotland Plc v Harrison UK EAT/0093/08
In this case, Mrs Harrison worked part-time for RBS. Her two young children were looked after by a childminder. On 8 December 2006, Mrs Harrison was informed that her childminder would be unable to look after the children on 22 December. Mrs Harrison attempted to find a replacement carer but, by 12 December, had failed to find a substitute childminder. On 13 December, she therefore told her team leader that she would have to have Friday 22 December off work to look after her children. On 20 December, RBS told her that she could not have the day off and that if she did so it would be treated as an unauthorised absence. Mrs Harrison, having no alternative, stayed at home to look after her children. On 2 February 2007, she was given a verbal warning to last for six months for having done so.
Mrs Harrison initially made a complaint under section 57B, ERA 1996 that she had been unreasonably refused time off. However, her complaint was held to be out of time as she did not present her complaint within three months of the date of the refusal of the leave. However, she also brought a complaint that she had suffered a detriment (namely the verbal warning) and time for that began to run on 2 February 2007 when the warning was given. The issue for the tribunal was whether Mrs Harrison had been entitled to take time off under section 57A.
The relevant provisions of section 57A are that “an employee is entitled to be permitted by his employer to take a reasonable amount of time off … which is necessary because of the unexpected disruption or termination of arrangements for the care of a dependant”. There was no issue as to whether Mrs Harrison had taken an unreasonable amount of time off. The issue was whether it was necessary for Mrs Harrison to take the time off because of the unexpected disruption of arrangements for the care of her children.
The tribunal held that Mrs Harrison had been subjected to a detriment since, although the amount of time which passes between being advised of an event and the event actually occurring can make the event expected rather than unexpected, the unavailability of the childminder was unexpected when Mrs Harrison learnt of it on the 8 December 2006. Although the guidance given by the Department for Business, Enterprise and Regulatory Reform (BERR) gave an example of a situation where a childminder did not arrive on a day when they were expected, the tribunal held that there was nothing in the legislation to limit the application of time off for dependants to that particular situation. RBS appealed to the Employment Appeal Tribunal.
The EAT considered that the word “necessary” requires consideration of all relevant circumstances, including the temporal relationship between the event and the notification of the event. The EAT pointed out that obviously the longer the time between the employee’s 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 then the tribunal is less likely to consider that it was necessary for him or her to take the time off. However, in this situation the employee had taken considerable steps to make alternative arrangements and therefore the necessity of her request was not so affected by the time element. Other factors need to be taken into consideration, for instance the nature of the disruption, the availability of alternatives, finance and time. The EAT also considered the word “unexpected”. An event is unexpected at the moment when the employee learns of it and does not become less so because of the passage of time.
Considering all the necessary factors, the EAT held that the tribunal was entitled to reach its decision, therefore its decision was not perverse and the appeal was dismissed.
Other requests for time off
One of the issues facing employers is that employees and employers are often confused as to whether the request to take time off falls within the request to take time off for dependants or other requests for time off. Employers need to bear in mind the following:-
- If an employee’s request does not fall within one of the statutory rights listed in section 57A, for example, if it is in relation to another emergency (the breakdown of a central heating system) then the matter will not fall within a request for time off for dependants. It will therefore be for the employer to determine whether there are alternative arrangements which can be made (agreeing unpaid or annual leave with the employee). In Mrs Harrison’s situation, neither of these options would have been helpful because the employer’s argument was that she could not have the day off as they had no cover for her in any event.
- The statutory regime does not apply to planned time off to care for dependants, for example to take a child to a recurrent medical appointment. In those circumstances, it may be appropriate for an employee to request parental leave if eligible. However, parental leave requires notice to be given and can only be taken in weekly blocks. In New Southern Railways Limited v Rodway  ICL 1162, an employee sought to take one day’s leave to look after his son by means of parental leave. The EAT and the Court of Appeal held that he had not suffered a detriment when given a disciplinary warning for taking the day off. The employee could not lawfully take one day’s parental leave and therefore the disciplinary action was not for a prescribed reason. He should instead have taken time off for dependants.
- The right to time off for dependants also covers leave in consequence of the death of a dependant. This is only where there is necessary action required as a consequence of the death and would not cover sickness arising from the bereavement. (Forster v Cartwright Black  IRLR 781).
What should employers do?
Obviously, the issue for employers is whether the employee has the right to request time off and whether taking any disciplinary action against an employee who takes time off for dependants could result in an employment tribunal claim. Employers should therefore do the following:
- Put in place a policy which sets out the circumstances in which an employee may take time off to care for their dependants (which as a minimum reflects their statutory rights).
- Set out the notification procedures that the employee is required to follow.
- Consider what evidence if any the employer may require. There is no legal obligation on the employee to provide evidence in support of the request for time off. However, in the Harrison case, evidence as to the steps that the employee had taken to find alternative childcare would have demonstrated the necessity for her to take the time off.
- If an employee is suspected of abusing the right, consider whether he or she gave the employer the reasons for the absence as soon as reasonably practicable and, if not, why circumstances prevented him or her from doing so.
- Ensure that the policy makes it clear to employees that any abuse of the system will be considered to be a disciplinary matter.
Employers should consider all matters carefully before agreeing to or rejecting an employee’s request for time off for whatever reason. The Harrison case makes it clear that each case should be considered on its own facts and that circumstances may arise which make it essential for an employee to request time off.