Time off for dependants: guidance for employers

The statutory right to time off for dependants is commonly misunderstood by both employers and employees. We consider some of the relevant case law in an attempt to shed light on this tricky area.

Background

In 2015, official statistics showed that 37% of the UK workforce had dependant children. Combining work and family life brings challenges and, in recent years various legislation has been introduced to assist 'hardworking families'.

One relatively new right is to be found in section 57A Employment Rights Act 1996, the right to a reasonable amount of time off during working hours in respect of dependants (see below).

Employers can struggle with requests for time off to look after children (and increasingly older relatives) as they may be unsure if the request is genuine, whether they can say 'no' and what amounts to a 'reasonable' amount of time off?

The right to unpaid time off

The statutory right to take time off applies to all employees (both male and female), irrespective of length of service, or whether they work full-time or part time or are employed on a permanent or fixed -term basis.

Such leave is unpaid unless the employee's terms and conditions of employment provide otherwise or the employer exercises their discretion to pay the employee for the time taken.

The legislation is specific and provides that an employee is entitled to take reasonable time off where it is necessary:

• to provide assistance if a dependant falls ill, gives birth, is injured or assaulted;
• to make care arrangements for the provision of care for a dependant who is ill or injured;
• in consequence of the death of a dependant;
• to deal with unexpected disruptions, termination or breakdown in arrangements for the care of dependant; and
• to deal with an unexpected incident which involves the employee's child during school hours

Only in the situations listed above does an employee have the statutory right to reasonable time off, other events such as flooding or other household emergencies are not covered by this statutory right.

The definition of a dependant

A dependant is defined as a:

• spouse (or civil partner),
• child,
• parent (but not grandparent) of the employee, or
• a person who lives in the same household of the employee (otherwise than as a lodger or tenant).

In addition, those that reasonably rely on the employee to provide assistance if they fall ill or to arrange for the provision of care, for example, an elderly neighbour, may also be a dependant for the purposes of the legislation.

Guidance on 'reasonable' time off

Many employers are concerned that employees may abuse the right to time off for dependants. Employers often become suspicious of such leave where an employee is subject to an absence management procedure due to their levels of sickness absence.

The Employment Appeal Tribunal in the case of Qua v John Morrison Solicitors confirmed that the legislation does not limit the amount of time off an employee is entitled to, however in the vast majority of cases no more than a few hours or, at most, one or possibly two days would be regarded as reasonable depending on the nature of the problem that has arisen.

Employees are not entitled to use the right to take lengthy periods of time off to actually provide care to dependants themselves. The time off must be used to deal with any immediate crisis and to arrange for care arrangements moving forward. In the case of Cortest v O'Toole a tribunal confirmed that the where an employee took a month off work to care for her child when childcare arrangements had broken down this was not covered by the right to time off for dependants.

Requesting time off

In order to exercise the right employees need to tell their employer as soon as reasonably practicable, of the reason for their absence (unless it is not reasonable practicable for the employee to tell the employer of the reason for their absence until they return to work) and how long they expect to be away.

In the case of Ellis v Ratcliff Palfinger Ltd involved an employee that disappeared on two occasions to take his pregnant partner to hospital, however he failed to tell his employer as soon as reasonably practicable of the reason for his absence. When he was dismissed for unauthorised absence he claimed that his dismissal was unfair as he was exercising his right to time off for dependants; the Employment Appeal Tribunal rejected this argument.

Can an employer manage absence relating to time off for dependants?

Absence which is genuine and properly recorded as time off to care for a dependant should not count against an employee in any way. Naisbett v Npower Limited demonstrates that giving an employee a first stage warning for absence relating to time off for dependants amounts to a detriment. In that case Ms Naisbett was awarded £1000 in compensation due to Npower subjecting her to an absence warning when she had taken seven days off for a dependant during a 12 month period.

If there is real reason to doubt the genuineness of the request or that the absence was not actually for a dependant this should be managed as a misconduct issue and the appropriate procedures followed in dealing with it.

In order to highlight the fact that the right for time off for dependants is limited to 'emergency' situations employers may find it would be worthwhile to implement a Dependant Leave policy which sets out:-

• the circumstances when leave may be taken
• the fact that leave is to deal with an emergency situation and should therefore ordinarily last for no more than a couple of days (as highlighted by the Qua case detailed above).
• the details of how the employee must notify the employer of the reason for their absence and the likely duration as soon as reasonably practicable
• that abuse of the policy or dishonesty in claiming absence as time off for dependants when it is not will be dealt with as a disciplinary issue
• details for other types of leave, such as parental leave, which are available in the event of extended absences.