All employees have the right to take a reasonable amount of time off to care for dependents in emergency situations. Whilst this may sound straightforward, it is not always clear, in practice, when or for how long the right can be exercised. Here we answer some of the most common questions that tend to arise when an employee seeks to rely on this right to take time off.
What is the right to time off for dependents?
First, it is important to set out who the statutory right applies to and in what circumstances the legislation says it can be exercised.
To be eligible to take time off for dependants, certain criteria or conditions must be met:
- The first is that the statutory right only applies to employees – it does not apply to workers or to self employed contractors. It is also a day one right, so an employee does not need to have a certain length of service to be entitled to exercise the right.
- The time off must be necessary to deal with certain specified situations. The legislation says that an employee is only 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 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 the unexpected disruption, termination or breakdown of arrangements for the care of a dependant.
- To deal with an unexpected incident which involves the employee’s child during school (or another educational establishment’s) hours.
If the situation requiring time off does not fall within any of the above categories, the right does not apply.
- The time off must be for “a dependant” as defined in the statute, that is:
- the employee’s spouse or civil partner.
- A child of the employee.
- A parent of the employee.
- A person who lives in the same household as the employee (but who is not their tenant, lodger, boarder or employee)
The definition does not include grandparents or grandchildren or other family members such as uncles or aunts. However, where the time off is to help a dependant who falls ill, gives birth or is injured or assaulted (see (a) above) or to make arrangements for the provision of the care of a dependant who is ill or injured (see (b) above, the definition of “dependant” is wider and includes anyone who reasonably relies on the employee for such assistance. So, it could potentially include grandparents or other individuals where they reasonably rely upon the employee, e.g. elderly neighbours.
- Employees are only entitled to take a “reasonable” amount of time off. The right is therefore limited in time and what is “reasonable” will depend on the circumstances of each case.
Does time off for dependents have to be paid?
What process must an employee follow to take the time off?
Due to the type of circumstances in which the need to take time off will arise, it is likely that the employee will not be able to give advance warning. The legislation recognises this and provides that an employee will have the right to take time off as long as they tell their employer of the reason for their absence, and how long they expect to be away, as soon as it is reasonably practicable. In exceptional circumstances, it may not be reasonably practicable for an employee to tell their employer of the reason for their absence until they return to work – but this kind of situation is likely to be rare.
What protection does an employee have if they exercise their right to time off?
If an employee is refused permission to take time off in circumstances where they are entitled to take that time off or if they take the time off and then are detrimentally treated because of it, the employee can bring a claim in the Employment Tribunal for compensation. Further, if an employee is dismissed for exercising the right, they will be able to pursue a claim for automatic unfair dismissal against their employer, regardless of their length of service. This is because of the special protection given to employees who are dismissed for exercising a statutory right.
When is time off likely to be considered “necessary”?
The question of whether the time off is or was necessary is one which can be problematic for employers, particularly when unexpected absence is retrospectively claimed by an employee to be due to an emergency involving a dependant. Although there is some guidance on the government website regarding the operation of the right, there is little legal authority on this area. It appears to be very much a case of judging the situation according to the individual circumstances. Relevant factors for employers to consider include the type of incident that has occurred, how close the relationship is between the employee and the dependant in question and the availability of alternatives.
In the case of the Royal Bank of Scotland plc v Harrison, UKEAT/0093/08, the Employment Appeal Tribunal held that, when deciding whether an employee’s action or proposed course of action was “necessary”, a tribunal should take all relevant circumstances into account, including considerations of urgency and time.
What is a “reasonable” amount of time off work?
As with the requirement for the time off to be “necessary”, the question of what is “reasonable” is open to interpretation and can give rise to difficulties where the amount of time off taken by an employee – whilst legitimately claimed – is high.
There is no limit specified in the legislation on how much time can be taken off work so it comes down, again, to the nature of the incident and the particular circumstances of the employee. It is important to note, however, that an employer should not take into account the inconvenience or disruption caused to their business when considering the amount of time an employee has taken off.
If an employee knows in advance about the disruption to care arrangements, can they still take time off?
Potentially, yes. It comes down to whether the time off is “necessary” and what efforts the employee has made during that period when they have known about the imminent disruption to make alternative arrangements. Take the case mentioned above of, Royal Bank of Scotland plc v Harrison, UKEAT/0093/08, where an employee had two weeks’ notice that her childminder would not be available. She tried, unsuccessfully, to make alternative arrangements for her children and ultimately had to take unpaid time off to care for them. The Bank argued that the disruption was not unexpected so she did not have the right to take the time off. The Employment Appeal Tribunal, however, disagreed and held that the word “unexpected” does not involve a time element and that, once aware of the event, the employee should try to make alternative arrangements to provide cover but, if it is not possible to do so, it will become necessary for the employee to take time off. The employee therefore succeeded in arguing she had taken time off for dependants when she was absent from work.
Can we ask for proof of the employee’s need to take time off?
The legislation does not require an employee to give their employer evidence of their need to take time off. An employer could request appropriate evidence but would need to tread carefully. The employer would need to have reasonable grounds for making the request (bearing in mind the implied duty to not to anything calculated or likely to destroy the relationship of trust and confidence) and also ensure it was not acting in a way that could be seen as discriminatory or viewed as subjecting the employee to a detriment for exercising their statutory right.
Action to Take
We recommend, as a starting point, having a Time off for Dependants policy which clearly sets out the statutory right and the circumstances in which it can be exercised. You may want to explain in the policy that appropriate evidence may be requested in order to establish an employee’s entitlement – to avoid causing upset or offence if/when you feel you do need this. It will also be important to set out the process you want employees to follow to notify you of their absence – keeping it as simple and straightforward as possible.
Awareness of the policy among staff will be important to try and ensure that the right is exercised appropriately but also that employees know they are entitled to take unpaid time off in an emergency rather than taking holiday or – as quite often happens – calling in sick.
Last but not least, if an employee appears to be regularly taking time off for dependants, it may be worth discussing with them the reasons for taking the time off to assess whether the right is being used for its intended purposes – to deal with unexpected events involving dependants of a short-term duration. Often, where the time off is occurring regularly, there is an underlying or recurring issue with care arrangements. In that situation, it may be better to explore with the employee other, more long term or practical options, such as the employee making a flexible working request to change their hours or working pattern, taking a planned period of unpaid leave or, in the case of caring for dependant children, unpaid parental leave.
If you need any advice regarding time-off requests or absenteeism or would like assistance implementing a Time Off for Dependents policy, please do not hesitate to get in touch with any member of the RELA team.