Time Off to Care for Dependants

The ambiguity of the law surrounding the right to take time off to care for dependants combined with the potential risk of claims for automatic unfair dismissal against those employers not aware of their full obligations, serves to make it something of a nightmare for employers. Here Russell Brown head of employment at Manchester law firm Glaisyers provides a clear explanation.



The right to take time off to care for dependants is contained in the Employment Rights Act 1996 and states employees are entitled to a ëreasonableí amount of time off in order to take action which is ënecessaryí for one of the following reasons:

to provide assistance on an occasion when a dependent falls ill, gives birth, or 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;

because of the unexpected disruption or termination of arrangements for the care of a dependant; or

to deal with an incident which involves a child of the employee and which occurs unexpectedly during school time

Definitions

Under this law, the definition of a dependant includes an employeeís immediate family members, friends living with them, and anyone else who reasonably relies on the assistance of the employee when they fall ill.

The definition of ënecessaryí is less clear cut and depends on circumstances, the nature of the incident, the relationship between the employee and the dependant, and the extent to which anyone else can provide assistance. If a family member falls ill and the employee takes time off, it may be relevant to assess whether other family members can help. Whilst it might be necessary for both parents of a seriously ill child to take time off, it would only be necessary for one of them to do so if, for example, the childminder had not turned up.

Unforeseen circumstances

The right is only intended to cover unexpected events, however this is often overlooked. If employees know in advance theyíre going to need time off, they should be able to arrange something using their annual leave entitlement or by exercising their statutory right to parental leave.

The short notice requirements are one of the most frustrating aspects of the legislation for employers. However, the right is intended to cover unexpected emergencies and so there doesnít appear to be any way around it. Itís the responsibility of employees to tell their manager the reason for their absence as soon as reasonably practicable, while also indicating how long they expect to be absent. If circumstances change while the employee is off, the employee is under a renewed obligation to notify their manager straight away.

Thereís no limitation on the amount of time off, however the circumstances of the individual need to be considered and any disruption or inconvenience faced by the employer must be ignored. If a dependant, for example, suffers regular relapses of an existing medical condition, employers are entitled to take into account the number, length, and dates of previous absences in determining whether a request is reasonable and necessary.

Finally, many businesses donít realise thereís no entitlement under the statute for payment during dependent care leave, although this may have been varied either by the contract of employment, or through custom and practice.

Unfair Dismissal

The most important point employers need to be aware of is that if an employee is dismissed for attempting to exercise their right, the dismissal will be deemed automatically unfair and the employer will have no defence open to them. More importantly, an employee will not require 12 monthsí service in order to bring their claim.

Itís essential that where an employee fails to attend work, theyíre not dismissed until the employer establishes the reason for their absence. An absence on a Monday morning could quite easily be viewed as a ìhangoverî from the weekend when in reality it could be legitimate.

Conclusion

The right to take time off and care for dependants covers a wide range of scenarios and being aware of all the facts is incredibly important. Knowing that the right is intended to cover an immediate crisis rather than a foreseeable event will allow an employer to require an employee to take annual leave if theyíre taking a relative to hospital the following week. Informed employers will also recognise that a washing machine flood is not grounds for time off, and nor can the right be used as the basis for compassionate leave.

Russell Brown can be contacted on 0161 832 4666 or rwb@glaisyers.com