Businesses will welcome an EAT decision on the right to time off for dependants which highlights the need for employees to ensure that they make contact with their employer to tell them why they are absent as soon as reasonably practicable for them to do so. The employee in this case had been taking his heavily pregnant partner to hospital, at first due to illness and then because she had been admitted to give birth. However, he had failed to tell his employer the reason for his absence as soon as it was reasonably practicable to do so.

This business briefing sets out how a business should respond when one of its employees requests time off work to deal with a situation affecting a dependant.

When can an employee request time off? Employees are entitled to take a reasonable amount of unpaid time off work when it is necessary to deal with certain unexpected or sudden events affecting a dependant. This right is available to all employees, irrespective of:

  • Their length of service
  • Whether they work full-time or part-time, or
  • Whether they are employed on a permanent, temporary or fixed-term basis

Employees have the right to take a reasonable amount of time off in the following situations:

  • To provide assistance if a dependant falls ill, gives birth, is injured or assaulted. An illness or injury does not have to be serious or life threatening to be covered
  • To make care arrangements for the provision of care for a dependant who is ill or injured (for example, taking a sick child to stay with relatives)
  • If a dependant dies. In these circumstances, unpaid time off is intended to enable an employee to deal with practical matters required as a result of a death (for example, arranging and attending a funeral). This should not be confused with compassionate leave, which the business may deal with separately
  • To deal with the unexpected disruption, termination or breakdown of arrangements for the care of a dependant (for example, to make alternative arrangements if a child’s nanny is ill); or
  • To deal with an unexpected incident involving a child during school hours

Businesses can also decide to allow employees’ unpaid time off in situations other than those listed above (for example, if their central heating system breaks down).

Who is a dependant? A spouse, civil partner, child or parent (but not grandparent) of the employee. A person who lives in the same household as the employee (excluding tenants, lodgers and boarders). Anyone who reasonably relies on the employee:

  • To make arrangements for care to be provided if their existing arrangements are unexpectedly disrupted or terminated
  • Because they have fallen ill, given birth, been injured or assaulted, or
  • To make arrangements for care to be provided because they are ill or injured

What is a “reasonable” amount of time off? This will always depend on the nature of the incident and the employee’s individual circumstances. However, in the vast majority of cases, it is unlikely that an employee should reasonably require more than a few hours or, at most, one or possibly two days to deal with an incident affecting a dependant. Unpaid time off for dependants is intended to be a short-term solution to deal with an immediate crisis. The business should discuss alternative arrangements with the employee (for example, taking annual leave or temporary flexible working arrangements), if the situation affecting their dependant is likely to require more time to resolve.

What obligations do employees have? Unless it is impossible for them to do so until they return to work, employees will only be entitled to take time off to care for a dependant if they inform the business:

  • As soon as possible of the reason for their absence
  • How long they expect to be away from work

Penalties: If an employment tribunal finds that an employee has been refused permission to take time off, or was subjected to a detriment for taking it (or seeking to take it), the tribunal can award compensation to the employee. If the tribunal decides that the employee has been unfairly dismissed for taking time off to look after a dependant, it can order the business to:

  • Re-employ the dismissed employee on new terms with no loss of continuity of employment (re-engagement)
  • Re-employ the  dismissed employee on the same terms of employment with no loss of continuity of employment (reinstatement), or
  • Pay compensation

Practical steps for businesses to take: Implement a clearly worded policy setting out the circumstances in which employees can take time off to care for their dependants and any evidence the business may require. Set out the notification procedures that employees must follow in the policy. Stipulate the penalties for abusing the right and for failing to follow the notification procedures in the policy. Explicitly state in your disciplinary procedure that abuse or breach of the policy will result in disciplinary proceedings being instigated. Publicise the policy so that employees cannot claim they were unaware of their obligations. Signpost other rights that employees may have which may be more appropriate (for example, parental leave).

The content of this Business Briefing is for information only and does not constitute legal advice. It states the law as at October 2014. We recommend that specific professional advice is obtained on any particular matter. We do not accept responsibility for any loss arising as a result of the use of the information contained in this briefing.