ALTHOUGH employees have had the statutory right to time off work in order to deal with emergencies affecting their dependants since 1999, this is still little known.
The time off is without pay and the right only exists in certain situations but is available to everyone who holds a contract of employment, whether they work full-time or part-time and whether or not their contract of employment is in writing. The right is set out in sections 57A and 57B of the Employment Rights Act 1996.
What is time off for dependants?
Employees have a right to take a reasonable amount of time off work to deal with certain unexpected or sudden emergencies affecting their family and to make necessary longer term arrangements.
Who qualifies for the right?
The right is available to all employees, whether they work full-time or parttime, and there is no qualifying period – an employee is entitled to the right from the first day of employment.
Who counts as a dependant?
A dependant is defined as the husband, wife, civil partner, child or parent (but not grandparent) of the employee; also an elderly relative who lives in the same household as the employee. However, tenants or lodgers living in the family home are not included.
Others who rely solely on the employee for help in an emergency may also qualify.
In what situations can an employee take time off?
The right enables employees to take time off in the following situations:
- If a dependant falls ill or has been injured or assaulted. The illness or injury, which includes mental illness or injury, does not need to be serious or life-threatening and may also be the result of an existing condition which has suddenly deteriorated.
- When a dependant is giving birth. This does not include taking time off after the birth to care for the child but an employee may be entitled to take paternity or parental leave for this purpose.
- To make longer term care arrangements for a dependant who is ill or injured: for example, arranging to employ a temporary carer. This does not enable employees to take additional or on-going time off to care for the dependant themselves.
- To deal with the death of a dependant. This includes making funeral arrangements and attending the funeral, applying for probate and meeting with probate officers. If the funeral is overseas, then the employer and employee will need to agree a length of absence which is reasonable in the circumstances.
- To deal with an unexpected disruption or breakdown of care arrangements for a dependant: for example, where a nanny fails to turn up as arranged or a nursery closes unexpectedly.
- To deal with an unexpected incident involving the employee’s child during school hours such as where the child has been injured on a school trip or is being suspended from school.
Under the statutory right, an employee is only entitled to take time off for dependants in the situations listed above. Other emergencies such as a breakdown of the central heating or the burst of a water pipe remain a matter to be determined solely between the employee and his or her employer.
Can both parents take time off work if their child falls ill?
There may be times when it is necessary that both parents take time off, for example if their child has had a serious accident. Much will depend on the circumstances of the particular case and the government guidance suggests that both employer and employee should adopt a common sense approach in these situations.
How much time off can an employee take?
The employee is entitled to take a reasonable amount of time off. What is reasonable will depend on the circumstances of each case.
The nature of the incident, the closeness of the relationship between the employee and the dependant and the extent to which another person was available to assist are all relevant factors.
On the other hand, disruption or inconvenience caused to the employer’s business should not be taken into account.
In most situations, one or two days should be sufficient. If a child falls ill, this will give the employee enough time to see a doctor and make longer term care arrangements for the child, if necessary. The employee is not entitled to take two weeks’ leave to look after the sick child.
What if the employee knows in advance that a problem is going to arise?
As the right only covers emergencies, it will generally not apply if the employee knows in advance that something is going to happen. If an employee knows beforehand that he or she is going to need time off, the person may be able to arrange this with the employer by taking another form of leave. For example, if the problem concerns his or her child, the employee may be entitled to a period of parental leave.
How often can the employee rely on the right to time off?
The right is intended to cover all genuine emergencies and there is accordingly no limit on the number of times an employee can be absent from work if an emergency occurs.
Does an employer need to keep records of time off taken under this right?
Employers are not required to keep records of time off taken but it is recommended that they do.
Is the time off paid?
The legal obligation for an employer is only to provide unpaid leave but an employer may, of course, choose to enhance the right by paying employees for some or all of their absence.
The employment contract of the relevant employee should be consulted for any provisions that deal with these situations.
What obligation does the employee have to give notice?
It is not necessary to give notice in writing but employees must tell their employer, as soon as reasonably practicable, the reason for their absence and how long they expect to be away from work.
The employee must also give sufficient information to enable the employer to determine that the time off is pursuant to the statutory right.
The legislation does not require the employee to produce any evidence of the need to take time off but there is also nothing preventing the employer from requesting appropriate evidence. This is, however, subject to the proviso that the employer has reasonable grounds to make the request for evidence; and does not act in a way that could be viewed as discriminatory or detrimental to the employee.
What remedies are available to employees for breach?
While any disputes should first be attempted to be resolved internally, an employee who is wrongly refused permission to take time off or who is subjected to a penalty or detriment for taking it (or seeking to take it) may apply to an employment tribunal for compensation.
Detriment can cover a wide range of discriminatory actions such as denial of promotion or training opportunities which would otherwise have been offered or made available.
An employee who is dismissed for taking (or seeking to take) time off may bring a claim for unfair dismissal, whether or not the person has completed one year’s service.
Any claim must be brought within three months of the date on which the refusal, detriment or dismissal occurred. Where a claim relates to a detriment or constructive dismissal, an employee is required to first raise the complaint as a grievance in accordance with the statutory grievance procedure before lodging an employment tribunal claim. Rather curiously, however, the statutory grievance procedure does not apply to claims for refusal of time off.
What practical steps can an employer take to prevent abuse of the right?
To prevent abuse of the right, an employer should put in place a clearlyworded policy:
- setting out the circumstances in which an employee may take time off and any (reasonable) evidence which the employer may require;
- setting out the notification procedure that the employee is required to follow;
- stipulating the penalties for abusing the right and for failing to follow the notification procedure;
- explicitly stating that abuse or breach of the policy will result in disciplinary proceedings being instigated.
The policy should be publicised and the employer must ensure that the policy is enforced consistently throughout the workforce.
Both employers and employees should be aware of the existence but also of the limitations of the right to time off work. In genuine emergencies employees will not depend on their employer’s approval to take time off.
On the other hand, in order to prevent abuse of the right, employers should clearly set out the circumstances in which an employee will be entitled to the right and the notification procedure that needs to be followed.
