Send to a friend
Overview
Overview
  • The right to time off to care for dependants is intended to be for emergencies only, and the time taken off is unpaid.
  • In deciding whether to allow the time off, the employer can consider whether it is necessary, and take into account any previous dependant leave which the employee has taken.
  • There is no specified limit on the length of a period of time off for dependants - but it must be reasonable.
  • An employee can make a complaint to the employment tribunal that s/he has been unfairly refused time off to care for dependants.
  • Dismissing an employee for taking time off for dependants will be automatically unfair.

Recent developments 

Carer's leave

The Government has confirmed that employees will have a right to take time off work as carer's leave. An implementation date has not yet been announced, however, upon implementation, employees will have a day one right to take up to 5 days' unpaid leave per year in order to provide care to someone who has a long term care need. The required relationship with the employee will be the same as that which already exists in relation to the right to take time off for dependants e.g. child, spouse etc.

The rights for employees with dependants to take time off work are found in the Employment Rights Act 1996, as amended by the Employment Relations Act 1999.
 
The legislation gives employees, both male and female, the right to reasonable time off for dependants in the event of any of the following circumstances:
  • where a dependant falls ill, is injured or is assaulted
  • to making arrangements for the provision of care.
  • where the employee has to make arrangements for the provision of care for a dependant
  • in the case of the death of a dependant
  • where the arrangements for the care of a dependant have been unexpectedly disrupted or terminated (eg a child-minder fails to turn up)
  • where there has been an unexpected incident involving the employee's child at school.
There is no qualifying service period required to entitle an employee to take time off work to care for a dependant, but the time off is unpaid.
 
For the employee to be entitled to time off work, the circumstances must be unforeseen. The intention behind the legislation is to allow employees to take time off work in the event of an emergency situation involving a dependant, and to be protected against any detriment for doing so.

Also key to the definition is the involvement of a dependant in the emergency at hand. For this reason, emergencies relating to other domestic circumstances eg a flood at home will not be covered under this right.

A dependant of an employee is defined in the legislation as one of the following:

  • husband or wife or partner
  • child
  • parent
  • someone else who is regarded as part of the family and lives with an employee (but not tenants, boarders, lodgers or employees)
  • anyone else who is reliant on an employee in emergency situations
The right to take time off to care for dependants is intended to be to deal with emergency situations. It does not cover situations such as taking a dependant to a previously agreed hospital appointment. As set out above, it is on the occasion of unforeseen events.
 
In Qua v John Ford Morrison Solicitors [2003], an employee used dependent leave to take time off to care for her child who had an ongoing medical condition. However, the employment tribunal ruled that this was a wrong use of the leave as it was not being used for emergencies.
 
RBS v Harrison [2008] helped to define the circumstances in which time off was ‘unexpected’ in relation to childcare. The Employment Appeal Tribunal clarified that ‘unexpected’ did not mean sudden in nature. It was sufficient, it said, that the disruption was unexpected at the time the employee learnt about it. An employee who had learnt of a disruption to her child’s care two weeks in advance, and had unsuccessfully taken all measures to find alternative arrangements, was qualified to use the statutory right to time off for dependants.
As a result of Qua v John Ford Morrison Solicitors [2003], the employment tribunal set out guidelines to be used when determining whether it is appropriate for an employee to take time off for dependants.
 
In determining whether the leave is 'necessary' the following factors should be considered:
  • the availability of someone else who can help in the circumstances
  • the nature of the incident
  • the relationship of the employee with the dependant.

The entitlement is to a 'reasonable amount of time off'. In assessing this, the employer cannot take into account the needs of the business and any disruption that the employee's time off might cause. However, if the employee has taken time off to care for dependants on previous occasions, the employer can take into consideration the following:

  • the number of times the employee has taken time off
  • the length of time off that the employee has taken
  • when the time off was taken
  • whether on each occasion the employer was informed of the absences

Employers should hold a return to work interview with an employee on their return to work after a period of time off for dependants, noting the number of days taken and any support to be offered to the employee. A template form for this purpose is available in the Time off for dependants section within our model documents.

The right to take time off to care for dependants is in an emergency only. The very nature of the entitlement to time off for dependants means that the employer cannot plan for the time off. However, the employee is required to inform the employer as soon as reasonably practicable about the absence, the reason for it and the anticipated length. Any extension to the originally anticipated length must be notified to the employer as soon as is reasonably practicable. The employee is not required to give 'daily updates' if the absence goes on for more than one day, but he or she is expected to keep the employer informed.

If the employee agrees a length of absence with the employer, the employee cannot extend that without agreement.
In many situations, the employer will not have the opportunity to refuse the leave, because the employee will be informing the employer after the event of the emergency. However, the Regulations do specify two main grounds on which time off can be refused:
 
  • where it is not necessary to take the time off (for example, if a child has had a serious accident it would be reasonable for both parents to go to the hospital, but if a childminder was ill it would not be reasonable for both parents to leave their work to care for the child) or
  •  where the amount of time off requested by the employee is unreasonable.

Under normal circumstances, an employer is likely to only deal with a relatively small number of instances of time off for dependants throughout the year. However, on rare occasions, the number of instances may well increase due to unprecedented situations like coronavirus. Even when this happens, it is not within the discretion of the employer to deny the right to time off for dependants. Employers are encouraged to open up communication with employees about how an extended period of time off will be dealt with. Homeworking, annual leave or a temporary period of flexible working may help.

The legislation requires that the length of the leave is 'reasonable'. The Department for Business, Energy and Industrial Strategy (BEIS) advises that this should not usually be more than two days - but it will depend on the situation.
 
The employer is not permitted to require an employee who has requested or taken time off to care for dependants to rearrange their working hours, or make up the time that has been lost.

Employers must take a common sense approach when establishing principles around a ‘reasonable’ amount of time. An Employment Tribunal has held, in Naisbett v Npower Ltd, that a total of seven days, spanning six instances of absence, within a period of 12 months was ‘reasonable’.

The right to take time off for dependants extends to the amount of time necessary to make arrangements in consequence of an emergency situation. In the circumstances of a death, the amount of time to be taken would cover, for example, making funeral arrangements but does not cover time taken by an employee in order to grieve.

Time off to grieve would normally be covered under an employer’s compassionate/bereavement leave policy. Entitlements are at the discretion of the employer. However, from 6 April 2020, 'bereaved parents' are entitled to take a maximum of 2 weeks' leave as parental bereavement leave in the event that they lose a child under the age of 18. This is the only type of statutory bereavement leave available. Please refer to parental bereavement leave for more information. 

During any period when the employee is absent from work under the time off to care for dependants provisions, he or she is not entitled to pay. Continuity of service will, however, not be affected.

An employee can make a complaint to the employment tribunal that he or she has been unreasonably refused time off to care for dependants. This claim carries no service qualification. If the complaint is found to be justified, the tribunal will make a declaration that the refusal was unfair, and award compensation that is 'just and equitable'. This is determined with consideration of any loss that the employee might have suffered and having regard to the employer's default.

Dismissing an employee because he or she exercised the right to take time off to care for dependants will be automatically unfair. Similarly, employees must not be subjected to any detriment for exercising this right. This means that the normal two year qualifying service rule will not apply; employees can make this claim from day one of employment. Compensation for a dismissal of this kind is capped at the current statutory limit as shown on our Statutory Rates page.

Schools and nurseries are subject to closure as part of the response to the coronavirus pandemic. When parents receive notification, sometimes at  very short notice, that their child’s school will be closed, they are entitled to take dependant leave, subject to eligibility requirements, in order to make arrangements for their continued care.to . Unfortunately, although it certainly fitted the definition of an emergency it is insufficient to deal with the situation: the statutory right may not provide enough timeto cover the entire closure period— the usual length of this leave is two days and closures tend to last for longer than this— and it is unpaid. Employers and employees will need to agree arrangements to cover the period of the closure where no other childcare arrangements are available, for example, temporary homeworking, temporary flexible working, annual leave, unpaid leave or, where eligible, furlough.

One of our employees has left work early on six occasions this month. On each occasion she has said that she needs to leave urgently because her child has been taken ill. Each time the child's school had phoned her and asked her to come to collect him.
 
When she left work early yesterday it caused us some significant difficulties because we were already short staffed due to holidays. A number of calls from customers were not answered, and we now have a customer complaint. Her line manager does not accept that the child can be ill on six occasions within one month, and does not think that the reasons she has given for leaving early are genuine. On that basis she thinks that the employee should be given a disciplinary warning. However, I am a bit nervous of doing this. What would you advise?
Employees are entitled to take unpaid time off to deal with emergencies that occur in relation to dependants. This is set out in the Employment Rights Act 1996. Clearly, a child is a dependant and a call from a school that a child has been taken ill would count as an emergency. An employee must not suffer any detriment for taking time off in such a situation. In Clarke v Credit Resource Solutions [2011] an employee was late to work when his childcare arrangements failed. He was asked to sign a 'late form' but refused as he thought he was being penalised for taking the time off. There was a rather heated debate and he was dismissed. Although the employer argued that the dismissal was for refusing a reasonable instruction and for unacceptable behaviour it was found that the dismissal related to taking time off for dependants and hence was unfair.
 
If you give a disciplinary warning this will be a detriment. However, it does seem that the situation merits some investigation. In the case of Qua v John Ford Morrison Solicitors [2003] Qua was absent from work on 17 occasions due to her son's ongoing health problem. The EAT ruled that the entitlement is to take time off to arrange care when unforeseen situations arise, not to provide ongoing care in non-emergency situations.
 
It seems that your case falls somewhere between an emergency and ongoing care. It would be reasonable for you to talk to the employee and find out more about the situation, asking if there is an ongoing problem and what exactly has been happening. It needs to be made clear that the right to time off is to deal with emergencies only.
 
At this stage it would seem rather rash to be considering a disciplinary warning. However, if the problem continues without explanation and it appears that the employee is not taking time off to address an emergency, this might be appropriate.