19/12/2008

Employment e-Brief – What is ‘necessary’ and ‘unexpected’ time off work to deal dependants?

Time off to care for dependants was created to help employees to take time off to deal with unforeseen events with regard to their dependants such as their spouse, child or person living in the same household.

As a result, an employee can take unpaid time off to take whatever action is necessary:

(a)     to provide assistance when a dependant falls ill, gives birth or is injured or assaulted;

(b)     to make arrangements for the care of a dependant who is ill or injured;

(c)     when a dependant dies;

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

(e)     to deal with an incident involving the employee’s child that occurs unexpectedly during school.

The employer must allow the employee a reasonable amount of time off to make the necessary arrangements.  What is necessary will depend on the particular circumstances of each case.

In the recent case of The Royal Bank of Scotland Plc v. Mrs J K Harrison the Employment Appeal Tribunal had to consider whether an employee’s request for time off to deal with a dependant was ‘necessary’ and ‘unexpected’.

Mrs. Harrison was told on 8 December that her childminder was unavailable for 2 weeks.  She did all she could to make alternative care arrangements but was unsuccessful.  She asked for the day off work as time off to care for her children but was refused and subsequently disciplined her when she stayed at home to look after her children. 

The Employer appealed against the original finding that she had been subjected to a detriment for taking time off. The issue for the Employment Appeal Tribunal (EAT) was whether it was ‘necessary’ for the employee to take time off because of the ‘unexpected’ disruption of arrangements for the care of her children. 

The EAT held that in deciding whether an employee is entitled to take time off under (d) above, the tribunal is entitled to take into account the time which passes between the employee becoming aware of the forthcoming disruption of care arrangements and that disruption taking effect as part of the question of whether it was ‘necessary’ for an employee to take the time off. 

The longer the time between the employee learning of the risk of disruption and the time when that risk becomes fact, the greater the time in which the employee can explore alternative arrangements.  If an employee has not taken appropriate steps to make alternative arrangements and has had sufficient time to do so, then it may be fair to conclude that it was not necessary for her to take the time off.  If the time which has passed between learning of the risk and the risk becoming fact is very short, then it will be easier.

Additionally the EAT concluded that word ‘unexpected’ does not involve a time element; it does not necessarily mean ‘sudden’ or ‘in emergency’. 

This case is therefore useful for employers to be aware of when deciding whether or not to allow an employee to take time off.  This case clearly states that the entitlement to time off because of the unexpected disruption or termination of care arrangements for dependants is not limited to last minute unavailability or emergencies.