The right for employees to take time off work in an emergency to care for dependants (in the circumstances detailed below) was introduced by the Employment Rights Act 1996 (as amended by the Employment Relations Act 1999). This right is effective from 15 December 1999.
The right to time off is available to all employees, whether they work full or part-time, and allows employees to take a reasonable amount of time off work to deal with certain unexpected or sudden emergencies and to make any necessary long term arrangements.
The emergency must involve a dependant of the employee. The right does not include entitlement to paid leave, so whether or not the employee will be paid is left to the employer’s discretion or to the terms of the contract of employment between them.
Employees do not have to complete a qualifying period in order to be able to take time off in an emergency. They are entitled to this right from the start of their employment.
The right to time off arises where:
- a dependant falls ill or has been injured or assaulted
- a dependant is having a baby
- long term care needs to be arranged for a dependant who is ill or injured
- a dependant dies
- there is unexpected disruption or breakdown of care arrangements for a dependant
- there is an unexpected incident involving the employee’s child during school hours
A dependant is the husband, wife, child or parent of the employee. A dependant also includes someone who lives in the same household as the employee. For instance, this could be a partner or an elderly aunt or grandparent who lives in the household. It does not include tenants or boarders living in the family home nor someone who lives in the household as an employee, such as a live-in housekeeper.
In cases of illness or injury, or where care arrangements break down, a dependant may also be someone who reasonably relies on the employee for assistance. This might be where the employee is the primary carer or is the only person who can help in an emergency.
The employee is entitled to take a reasonable amount of time off in the circumstances, although the amount of time that can be taken is not specified by the Act. The time taken should be reasonable to help the employee take such action as is necessary to deal with the crisis, for example to make long term care arrangements.
In the event of a dispute the employer and employee should seek to resolve differences through the normal grievance procedures. Otherwise, it would be up to an employment tribunal to determine what is reasonable.
In situations where a longer period of leave is required and the employee knows in advance that the problem is going to arise, the employee may have to take annual leave or other leave if the employer provides it. This is because the new right is for unforeseen matters.
There is no requirement for an employer to keep records of time off under these regulations.
Employees must tell the employer, as soon as is practicable, the reason for the absence and how long they expect to be away from work. An employer who thinks that an employee is abusing the right to time off should deal with the situation according to its normal disciplinary procedures.
Employees are protected from being penalised or dismissed because they have taken or have sought to take time off under this right.
It is unfair to be dismissed or selected for redundancy for taking or seeking to take time off under this right.
In a recent case (Ms J Percy v Michael Jackson Oates trading as Metcalfe Harding & Co) a single mother, who was sacked for leaving work to collect her sick seven-year old son from school was found to have been unfairly dismissed by her employer.
She was telephoned by her son’s school and informed that he really needed to see a doctor. Clearly concerned about this news, the woman went to see her manager and explained that there was an emergency and she needed to attend to her son. The manager simply waved her away, and as she was leaving the office she was told that she was dismissed on the grounds of her bad attitude and unreliability.
This decision is the first decision of its kind under the new dependant care rules. The tribunal was unanimous in its decision and found the manager’s version of events to be exaggerated. The manager tried to convince the tribunal that she was dismissed because of her poor work and attitude and accused her of being antisocial and making frequent personal telephone calls. The tribunal were not convinced and found that she was sacked because she took time off to care for her sick child. Compensation has not yet been set but it is unlikely to be a large sum since the employee found alternative employment almost immediately upon her dismissal.
Thankfully her son made a full recovery. Her employer however is not feeling quite so healthy!
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
