Since 1999 employees have had the right to take a reasonable amount of unpaid time off work to take action in certain situations affecting their dependants, including when it is “necessary because of the unexpected disruption or termination of arrangements for the care of a dependant”. Dependants include children.
To exercise the right the employee must, as soon as reasonably practicable, tell their employer the reason for the absence and how long they expect to be away from work. Employees who seek to exercise this right can complain to an Employment Tribunal: (i) if the employer unreasonably refuses to allow them to take time off work; and (ii) if the employer subjects them to any detriment because they exercised or tried to exercise the right to take time off work.
In the case of RBS –v- Harrison, Mrs Harrison was informed on 8 December 2006 that her childminder was unavailable for work on 22 December. Mrs Harrison tried to find a replacement carer. By 12 December she had been in touch with all her usual contacts, but had been unable to find a substitute. On 13 December Mrs Harrison therefore asked RBS for 22 December off work. RBS told Mrs Harrison on 20 December that it could not cover her on 22 December, so she was required to attend work. Mrs Harrison took 22 December off work. RBS treated this as unauthorised absence and, following a disciplinary process, gave her a verbal warning.
The EAT upheld the Tribunal’s decision that the unavailability of Mrs Harrison’s childminder on 22 December was “unexpected” when she found out about it on 8 December, and that the time off was “necessary”. Giving Mrs Harrison a verbal warning was therefore an unlawful detriment. The EAT held that deciding whether or not circumstances are “unexpected” does not involve consideration of time or require an emergency – unexpectedness is judged at the moment when the employee learns of the disruption.
The key question in deciding whether an employee can take time off for dependants is therefore whether the time off is “necessary”. In deciding what is necessary, an Employment Tribunal will look at all the circumstances, including the time between the employee learning of the disruption and the date of the disruption, the availability of alternatives, the nature of the disruption and finance.
What this means for employers
Given the focus in the EAT on necessity, employers that receive requests for time off for dependants in advance are well advised to send a letter by return to the employee asking what steps they have taken to find alternatives (and perhaps suggesting some options). As ‘finance’ is one of the criteria that Tribunals will consider in deciding whether time off is necessary, arranging and contributing towards emergency childcare cover for employees would assist employers that want to be able to refuse such requests. In any event, employers should respond quickly to any request and must now think very carefully before disciplining an employee for taking time off work for dependants unless clear evidence exists that there was a viable alternative.