For almost four years employees have had the right to take a reasonable amount of unpaid time off work when a dependant falls ill, suffers an injury, gives birth or dies, or to deal with unexpected childcare problems.
An employee wishing to exercise this right must tell their employer the reason for their absence as soon as reasonably practicable and give an estimation as to how long they expect to be absent (unless there are such unusual circumstances to prevent the employee from contacting the employer, in which case the employee may only be able to inform their employer of the reasons for their absence once they have returned to work).
In a recent case MacCulloch and Wallis Ltd v Miss O Moore the EAT clarified the nature of the right and that an employee's protection against dismissal (or other action taken against them by the employer) will be lost if the employer is not notified as soon as is reasonably practicable by the employee should an extension of time off be necessary.
What does this mean for Employers?
The difficulty for employers is that employees have misunderstood the basis upon which they are entitled to this right. Employers should therefore:
- inform employees their right to take time off is linked to such time that would enable them to take action which is "necessary" to deal with an unforeseen circumstance;
- remind employees of the limitations to this right. The entitlement to time off is only permitted in order to enable the employee to take action which is necessary to provide assistance or to make arrangements and, only, if the employee tells their employer the reason for their absence as soon as reasonably practicable and for how long they expect to be absent (unless it is absolutely impossible for them to do so prior to their return to work);
- remind employees that they can only take time off work to temporarily assist with the dependant and not to provide longer term care for that dependant themselves;
- inform employees that should they require further time off beyond what they had expected, this will only be permitted if they tell their employer as soon as possible; and
- remind employees that the right is to unpaid leave (unless the Company’s policy provides otherwise