Legal Guide to taking time off from work in emergencies

Ben Hopps: What is time off for dependants?

Stephan Weber: Employees have a right to take a reasonable amount of time off work to deal with certain unexpected or sudden emergencies affecting their family and to make necessary longer term arrangements.

The right is set out in sections 57A and 57B of the Employment Rights Act 1996.

BH: Who qualifies for the right?

SW: The right is available to all employees, whether they work full-time or part-time, and there is no qualifying period, i.e. an employee is entitled to the right from the first day of employment.

BH: Who counts as a dependant?

SW: A dependant is defined as the husband, wife, civil partner, child or parent (but not grandparent) of the employee. Also an elderly relative who lives in the same household as the employee. However, tenants or lodgers living in the family home are not included.

Others who rely solely on the employee for help in an emergency may also qualify.

BH: In what situations can an employee take time off?

SW: The right enables employees to take time off work in the following situations:-

• If a dependant falls ill or has been injured or assaulted

(The illness or injury, which includes mental illness or injury, does not need be serious or life-threatening and may also be the result of an existing condition which has suddenly deteriorated);

• When a dependant is giving birth

(This does NOT include taking time off after the birth to care for the child but an employee may be entitled to take paternity or parental leave for this purpose);

• To make longer term care arrangements for a dependant who is ill or injured

(for example, arranging to employ a temporary carer. This does NOT enable employees to take additional or ongoing time off to care for the dependant themselves);

• To deal with the death of a dependant

(This includes making funeral arrangements and attending the funeral, applying for probate and meeting with probate officers. If the funeral is overseas, then the employer and employee will need to agree a length of absence which is reasonable in the circumstances);

• To deal with an unexpected disruption or breakdown of care arrangements for a dependant

(for example, where a nanny fails to turn up as arranged or a nursery closes unexpectedly); and

• To deal with an unexpected incident involving the employee’s child during school hours

(for example, where the employee’s child has been injured on a school trip or is being suspended from school).

Under the statutory right, an employee is only entitled to take time off for dependants in the situations listed above. Other emergencies such as a breakdown of the central heating or the burst of a water pipe remain a matter to be determined solely between the employee and their employer.

BH: Can both parents take time off work if their child falls ill?

SW: There may be times when it is necessary that both parents take time off, for example if their child has had a serious accident. However, much will depend on the circumstances of the particular case and the government guidance suggests that both employer and employee should adopt a common sense approach in these situations.

BH: How much time off can an employee take?

SW: The employee is entitled to take a reasonable amount of time off. What is reasonable will depend on the circumstances of each case. The nature of the incident, the closeness of the relationship between the employee and the dependant and the extent to which another person was available to assist are all relevant factors.

In most situations, one or two days should be sufficient. For example, if a child falls ill, this will give the employee enough time to see a doctor and make longer term care arrangements for the child, if necessary. The employee is NOT entitled to take two weeks’ leave to look after the sick child.

BH: How often can the employee rely on the right to time off?

SW: The right is intended to cover all genuine emergencies and there is accordingly no limit on the number of times an employee can be absent from work if an emergency occurs.

BH: Does an employer need to keep records of time off taken under this right?

SW: Employers are not required to keep records of time off taken but it is recommended that they do.

BH: Is the time off paid?

SW: The legal obligation for an employer is only to provide unpaid leave but an employer may, of course, choose to enhance the right by paying employees for some or all of their absence. The employment contract of the relevant employee should be checked for any provisions that deal with these situations.

BH: What obligation does the employee have to give notice?

SW: It is not necessary to give notice in writing but employees must tell their employer, as soon as reasonably practicable, the reason for their absence and how long they expect to be away from work.

BH: What remedies are available to employees for breach?

SW: While any disputes should first be attempted to be resolved internally, an employee who is wrongly refused permission to take time off or who is subjected to a penalty for taking it (or seeking to take it) may apply to an employment tribunal for compensation.

An employee, who is dismissed for taking (or seeking to take) time off, may bring a claim for unfair dismissal.

BH: What practical steps can an employer take to prevent abuse of the right?

SW: To prevent abuse of the right an employer should put in place a clearly-worded policy:-

• setting out the circumstances in which an employee may take time off and any (reasonable) evidence which the employer may require
• setting out the notification procedure that the employee is required to follow
• stipulating the penalties for abusing the right and for failing to follow the notification procedure
• explicitly stating that abuse or breach of the policy will result in disciplinary proceedings being instigated

The policy should be publicised and the employer must ensure that the policy is enforced consistently throughout the workforce.

About the Authors

For further assistance and advice, please contact Ben Hopps, partner and head of our employment department, or Stephan Weber, trainee solicitor, on 020 7398 4700 or by email ben.hopps@sykesanderson.com and stephan.weber@sykesanderson.com.