Employment law: Dependants day

Since December 1999, employees have had a statutory right to take time off to deal with particular situations involving someone who depends on them.

What sort of situations are covered under "time off for dependants"?​

The Employment Rights Act 1996 permits all employees to take a reasonable amount of time off during their working hours to deal with particular unexpected situations affecting dependants.

The time off has to be necessary where the dependant:

• Falls ill, is injured or assaulted and needs the employee's help (they do not need to be physically assaulted, it is enough for them to need comforting)

• Needs them to make arrangements for their longer term care such as arranging to temporarily employ a nanny, childminder, etc

• Needs them to deal with an unexpected disruption or breakdown in care arrangements such as a childminder failing to turn up

• Dies and the employee needs to make funeral arrangements and attend the funeral. It is not a right for compassionate leave

• Gives birth

• Is the employee's child and the employee needs to deal with an unexpected incident with the child while at school.

Workers who are not employees and the self-employed do not have this right. However, all employees, regardless of their length of service or the type of contract they are working under (eg part time or fixed term), have this right.

The statutory right is limited to the above reasons, so in the case of another unexpected event such as a house fire or boiler break down, this would have to be dealt with by arrangement between the employer and the employee.

It also does not include planned time off such as taking the dependant to a doctor's appointment.

Recent changes​

In a recent case involving an employee of Royal Bank of Scotland, a decision was made by the Employment Appeals Tribunal (EAT) that employees who take time off to deal with a breakdown in their childcare arrangements are entitled to take this time as 'time off for dependants' despite knowing in advance that this breakdown will occur.

In this case the employee knew two weeks in advance that her childminder would not be available. The employer argued that this was not unexpected, so should not fall within the definition.

However, the EAT said the word 'unexpected' does not involve a time element, and that the passage of time between the forthcoming disruption of childcare arrangements and the disruption taking effect is considered as part of the question as to whether it is 'necessary' to take the time off. In this case, it was held to be necessary and unexpected.

The lesson is that the right to time off is not limited to last minute emergencies.

Who is a dependant?​

A spouse (including civil partner), child or parent of the employee or someone living with them as part of their family and anyone who reasonably relies on them for assistance when ill or injured, for example an elderly neighbour living alone.

What is covered?​

Employees should notify their employer as soon as reasonably possible and they should say how long they expect to be off.

This does not need to be in writing. If they know in advance, it can be agreed as paid or unpaid leave or if it relates to their child who is under five, they may be entitled to parental leave. If your employee makes such a request, you should find out the reasons for it and how long they expect to be off work.

If they have genuine reasons for it, you should not penalise them. You cannot take into account the disruption of your business.

Is it time off for a dependant?​

The employee has to give you sufficient information so that you can determine that their time off is regarded as statutory right to time off.

Employees do not have to produce evidence of their need to take this time off, although there is nothing to stop you requesting appropriate evidence from them - provided you treat all employees who make such requests in the same way.

If the employee has told you their reason for taking time off and how long they expect to be off and then there is a change of circumstances, they must then as soon as is reasonably practicable tell you.

How much time off and do I have to pay the employee?​

There is no rule setting the amount of time an employee can take off. As a guide, one or two days should be sufficient to deal with most situations.

Recent case law has decided that up to a month was too long to deal with the breakdown of childcare arrangements (Cortest v O'Toole). There is also no limit on the amount of times an employee can exercise this right.

It also depends on the individual circumstances, nature of the incident, the closeness of the relationship between employee and dependant and the extent to which another person was available to help.

There is no need to pay your employees for this time off, unless their employment contract allows it.

How much can it cost you if you say no? ​

If you unreasonably refuse to allow your employee to take time off for this right, and the employee is dismissed as a result, they can bring a claim for unfair dismissal in the Employment Tribunal and can be awarded compensation or reinstatement.

Alternatively, if the employee remains in employment, they can bring a claim for compensation and

a declaration that they have been unreasonably permitted to exercise their statutory right to time off. Compensation is what the tribunal considers to be 'just and equitable'.

If you feel your employee is abusing this right then you should deal with it in line with your disciplinary procedures. Often problems occur due to a failure of communication and unrealistic expectations.

The best way of avoiding such disputes is by putting in place and publicising a clearly worded policy which sets out the rights of employees, as well as the expectations that the employer can reasonably place on employees. n