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Employees have a statutory right to take a “reasonable” amount of unpaid time off work to take “necessary” action to deal with particular situations affecting their dependants. This right is set out in sections 57A and 57B of the Employment Rights Act 1996 and BIS (The Department for Business, Innovations & Skills) have published guidance to assist employers and employees.
The right to time off, as well as any related statutory protections will only apply to an employee if they tell their employer as soon as reasonably practicable the reason for their absence AND how long they expect to be away from work (unless it is not reasonably practicable for the employee to tell the employer of the reason for their absence until they return to work).
The statutory right to take unpaid time off for dependants applies to a broad range of employees. Employees have this right irrespective of their length of service or whether they work full or part-time or are employed on a permanent, temporary or fixed-term basis. It applies to both male and female employees.
A “dependant” is defined as a spouse, civil partner, child or parent (but not a grandparent) of the employee, or a person who lives in the same household as the employee (excluding tenants, lodgers, boarders and employees). This definition is however expanded in certain situations to include the concept of “those who reasonably rely” on the employee.
When action is “necessary” will depend on the circumstances of each case. Factors taken into account will include the nature of the incident which has occurred, the closeness of the relationship between the employee and the dependant and the extent to which someone else is available to deal with the situation.
An employee only has a statutory right to take time off for dependants if their circumstances fall within one of the following situations (see section 57A(1) of the ERA):
1) To provide assistance if a dependant falls ill, gives birth, is injured or assaulted;
2) To make care arrangements for the provision of care for a dependant who is ill or injured;
3) In consequence of the death of a dependant;
4) To deal with the unexpected disruption, termination or breakdown of arrangements for the care of a dependant;
5) To deal with an unexpected incident which involves the employee’s child during school (or another educational establishment’s) hours.
All other circumstances are left to be dealt with by the employer which can be done via the employer’s policy, employee’s contract or on an ad hoc basis agreed between the employee and the employer.
Employees are only entitled to take a “reasonable” amount of time off. This aspect of the right is the one that could be potentially open to most abuse by employees. What is reasonable will entirely depend on the circumstances of each case however it has been suggested that in the vast majority of cases, no more than a few hours or at the most a day or two would be regarded as reasonable time to deal with a problem. It should be noted that operational needs of the business should not be considered a factor in deciding reasonable amount of time. (Qua v John Morrison Solicitors  IRLR 184 for guidance on this issue).
It is important for an employer to know exactly what an employee’s rights are as an employee who is refused permission to take time off in accordance with this right or who is subjected to a detriment for taking it (or seeking to take it) may complain to an employment tribunal. Furthermore an employee who is dismissed for the reason that they took or sought to take time off in accordance with this right will be able to claim unfair dismissal, whether or not they have the necessary qualifying service for an ordinary unfair dismissal claim as this reason for dismissal falls into the category of automatically unfair dismissals.
The legislation has the purpose of providing protection to employees in genuine circumstances and to remedy those who have been refused this right. However due to the fact that there are several factors to the right, some of which having broad, undefined terms especially that of “reasonable” time, an employer may be concerned that this right could be potentially abused by employees.
What should first be noted is that the statutory right is “unpaid” and so this in itself should be a deterrent to abuse of it (Employers have every right to make this right paid if they desire). Secondly it would be advisable for employers instead of being concerned of highlighting the right to employees, to make employees aware of exactly how the right works, including its limitations.
Mishandling an employee's request for time off for dependents can prove problematic for Employers, so it is important that employers put in place the following:
1) Have a clearly worded “Time off for Dependants” policy which sets out the precise circumstances in which an employee can take unpaid time off to care for their dependants and any evidence of this that the employer may request.
2) Set out the notification procedures that the employee is required to follow.
3) Set out the consequences for abusing the right and for failing to follow the notification procedures.
4) State in the disciplinary procedure that abuse or breach of the Time off for Dependants policy will result in disciplinary proceedings being initiated.
5) Ensure the policy is made available to employees to prevent any claims of them not being aware of their obligations.
6) Make employees aware of other rights that are available to them that could be more appropriate to their situation.
7) Ensure that the policy is enforced consistently throughout the workforce.
If you require employment law advice on Time Off For Dependents or any other employment issue give us a call today on 0370 218 5662. You can also find out more about our fixed fee HR packages here and fixed fee employment law packages here, or get in touch.