Inevitably, unforeseen and urgent situations will at times demand our attention – a call from the school nurse, a sick parent or a disruption in care arrangements for children – and sometimes work commitments have to be put on hold.
Under s57A of the Employment Rights Act 1996, employees have a statutory right to a reasonable amount of unpaid time off work to take action which is necessary in order deal with matters relating to dependants, such as:
- assisting a dependant who is ill, has given birth, is injured or has been assaulted
- to arrange care for an ill or injured dependant
- following the death of a dependant
- care arrangements for a dependant being disrupted or ending, or
- to deal with an incident at a dependant child’s school.
A “dependant’” means an employee’s:
- spouse, civil partner or unmarried partner
- any person living in the same household as the employee (but who is not a tenant, lodger or boarder), or
- any other person who reasonably relies upon the employee – for example, where the employee is the primary carer for that person.
In Royal Bank of Scotland plc v Harrison, the Employment Appeal Tribunal (EAT) concluded that there was no requirement for an employee’s problem to be “sudden” or “urgent” in order to meet the “necessary” threshold.
In Qua v John Ford Morrison Solicitors, the EAT held that when determining what constitutes a “reasonable” amount of time, the Employment Tribunal (ET) should consider the specific circumstances of the employee and ignore any disruption or detriment to the employer.
However, the intention of the legislation is to allow employees to deal with unforeseen problems – re-occurring problems, such as a dependant child relapsing due to a known medical condition, are unlikely to fall within the statutory right under s57A.
What is expected of an employee?
In order to qualify for dependant leave, an employee must tell their employer:
- the reason for their absence as soon as reasonably practicable, and
- how long they expect to be absent (s57A(2)).
It is important that the employee notifies their employer as soon as reasonably possible, particularly given that it is often a feature of an individual’s employment contract that they report absences without unreasonable delay. In Ellis v Racliffe Palfinger Limited, the EAT decided that an employee had not been unfairly dismissed for exercising his right to take dependant leave, because he had not informed his employer ‘’as soon as reasonably practicable”.
What protections does the employee have?
Employees who take or seek to take dependant care leave in accordance with the statutory right have similar rights to protection from detrimental treatment as women who take or seek to take maternity leave.
If an employee is dismissed because of a reason connected to the fact that they took or sought to take dependant care leave in accordance with their statutory right, then this will be regarded as an automatically unfair dismissal. This also applies where there is a redundancy situation and an employee is selected for redundancy because they exercised their dependency leave rights.
If an employee believes they have been unlawfully denied dependant care leave or subjected to a detriment for taking such leave, the time limit for making a complaint to the ET is three months from the date of refusal or the date of the detriment. If the employee’s claim succeeds, then the ET may make a declaration and/or make an award of compensation, the amount of which will be what the ET considers to be just and equitable, having consideration to the employer’s behaviour and any loss sustained by the employee.
As businesses and workers deal with COVID-19, it’s likely that employers will be faced with requests from employees wanting time off to deal with issues relating to their dependants. It’s important therefore that both employees and employers are aware of their respective rights and obligations when these situations arise.