In the first of three in a series of articles, Val Moore looks at the legislation that relates to time off for dependants.
Although the right to time off for dependants came into force on 15 December 1999 and sets out an employee’s right to take a reasonable amount of unpaid time off work for urgent family reasons, many employers are still uncertain of their responsibilities.
The right to time off for dependants applies to all employees, regardless of gender, age or length of service. There are exceptions which are not relevant to childcare.
What is a dependant?
The legislation makes it clear that employees may take time off work in an emergency to provide assistance or take appropriate action to care for a dependant. A dependant can be a:
partner or civil partner
person who lives in the same household as the employee (but who is not his or her lodger, employee or boarder)
person who reasonably relies on the employee for assistance. This extended definition of a dependant may apply where an employee cares for a neighbour and where this person unexpectedly falls ill or is injured or assaulted.
A dependant, therefore, does not have to be related to the employee
Reasons for time off
An employee may take time off work to provide assistance or to take appropriate action when:
a dependant is suddenly taken ill or has been assaulted or injured
a dependant gives birth
a dependant dies
existing arrangements for the care of a dependant are unexpectedly disrupted or come to an end, eg an employee’s childminder calls in sick
the employee’s child is involved in an incident at school.
The latter two are of interest to providers as they have legislation on their side if they need a parent/carer to attend the provision in such an “emergency” situation.
In order to take time off to deal with an emergency involving a dependant, employees must, as soon as is reasonably practicable, inform the employer of:
the reason for their absence
how long they expect to be absent from work.
Notice does not have to be given in writing. If an employee does not comply with the notification requirements, the employer may treat the absence as unauthorised leave.
Reasonable time off
What has caused confusion for employers (and indeed employees) is that the legislation does not clarify how much time off work should be granted to deal with an emergency.
When deciding what is reasonable, an employment tribunal will consider what is reasonable to the employee, given his or her circumstances, and will discount any inconvenience or disruption to the employer’s business. Some guidance has been provided to help employers determine what amounts to reasonable time off. It states that the following factors should be taken into account:
the nature of the incident
the closeness of the relationship between the employee and the particular dependant
whether another person is available to help or look after the particular dependant
the number and length of any previous absences related to caring for a particular dependant (eg where the child has a recurring illness).
Again relevant to childcare, an employee would not be permitted to take time off from work so that he or she could care for a sick child (or another sick dependant) where that care is in addition to dealing with the immediate emergency.
Where a dependant dies, reasonable emergency time off would cover making funeral arrangements and attending the funeral but it would not cover additional leave to help the employee deal with emotional repercussions; this would come under compassionate leave and such leave may vary depending upon the scheme the employer chooses to adopt.
The Department for Business, Innovation and Skills (BIS) suggests that one or two days would normally be sufficient for an employee to deal with a family emergency and, if necessary, to make alternative arrangements for the continuing care of the dependant. The actual circumstances of each case should, however, be considered on its own merits. If any further time off is required, this could be taken as paid annual leave or another form of leave.
Statutory rights during such an absence
Employees have the right not to be victimised, dismissed or subjected to any detriment for exercising their statutory right to take time off for dependants.
In one tribunal case, the claimant, a delivery driver in a small company, was dismissed during his second week of employment when he took a day off work to care for his partner who had been taken ill. Although he did not have the one year’s service required to claim unfair dismissal in the normal way, he brought a claim asserting that the reason for his dismissal was that he had taken time off work to care for dependants. (Such a claim does not require any minimum period of service.) The tribunal allowed the claim to proceed and it was held that the dismissal was automatically unfair.
While provisions need to consider each event on its merits, a policy on such time off, with anticipated average amount of time off for various scenarios, may be a consideration.
A short “back to work” interview may well be appropriate and part of the provision’s policy. Keep an open mind as the employee’s emergency — while perhaps seeming trivial to you — may have been traumatic for them. As Mother Teresa said: “I would rather make mistakes in kindness and compassion than work miracles in unkindness and hardness.”
Last reviewed 23 December 2013