Overview
Overview

The right to time off for dependants came into force on 15 December 1999. The provisions have been incorporated into the Employment Rights Act 1996, which sets out an employee’s right to take a reasonable amount of unpaid time off work for urgent family reasons.

  • 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 they have 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 Bill becomes law

Employees with caring responsibilities will have a legal right to take five days’ off each year to carry out those responsibilities for someone who is old, has a disability or an illness/injury lasting more than three months.

The days will be unpaid and can be taken in full days or half days.

This is likely to be implemented in April 2024.

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 time to 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.

The Carer’s Leave Act 2023 introduces a brand-new right for eligible employees to have time off work to provide or arrange care for their dependant who has a long-term care need.

Whilst this is now law, the date when this new right will be effective from is yet to be announced, but it is not likely to be earlier than April 2024.

Eligibility

The right to take carer’s leave applies to employees who have dependants with a long-term care need.

It applies from day one of employment so there is no service requirement to be eligible for this leave.

There is no requirement under the legislation that employees need provide evidence of their entitlement to take this leave. 

Dependants

A person is a dependant of an employee if they:

a)    are a spouse, civil partner, child, or parent of the employee. 

b)    live in the same household as the employee, however, this does not include the employee’s boarder, employee, lodger, or tenant, or

c)     reasonably rely on the employee to provide or arrange care. 

 Long term care need

A dependant of an employee has a long-term care need if any of the below apply:

a)    they have an illness or injury (whether physical or mental) that requires, or is likely to require, care for more than three months.

b)    they have a disability for the purposes of the Equality Act 2010.

c)    they require care for a reason connected with their old age.

What amounts to “old age” has not been defined yet by the Act itself or the government.

Using the leave

Carer’s leave can be used by employees to provide care or make care arrangements for a dependant who requires long-term care.

Employees already have the right to time off for dependants to deal with an emergency involving a dependant. This new right however, will entitle eligible employees to take planned leave when there is not an emergency.

Whilst the legislation itself does not provide any examples, the government has previously stated that carer’s leave should be used for a wide variety of caring activities, such as the following:

a)    providing personal support, such as keeping an eye out for someone, keeping them company, and staying in touch.

b)    providing practical support, such as making meals, going shopping for them, laundry, cleaning, gardening, maintenance, and other help around the house.

c)     helping with official or financial matters, such as helping with paperwork, dealing with ‘officials’, paying bills/rents/rates, collecting pensions/benefits.

d)    providing personal and/or medical care, such as collecting prescriptions, giving medications, changing dressings, helping them to move around the home, getting dressed, feeding, washing, bathing, using the toilet.

e)    making arrangements, such as dealing with social services or the voluntary sector, moving someone into a care home, making home adjustments or adaptions.

Although not referenced in the legislation itself, the government has stated that they would not consider providing childcare, other than to children who have a long-term illness, as falling within the scope of carer’s leave. Also, employees who need to support dependants for a short period of time, for example, because they have broken their leg, would also not be eligible to take carer’s leave.

Duration of leave

An eligible employee is entitled to at least a week’s leave during any 12-month period.

A ‘week’ is calculated by reference to the working week for that employee. The government has previously stated that this would be up to 5 working days. The Act, however, does not specifically state this, so we will need to wait for further guidance.

The leave does not have to be taken continuously and can be taken in single or half days.

Requesting carer's leave

The Act itself does not set out how an employee would request this leave. The government has previously stated that employees will be required to give notice ahead of taking carer’s leave which is twice the length of time being requested as leave, plus one day.

The government has also stated that employers will be able to postpone, but not deny, the leave request for carer’s leave.

Postponement, however, would only be allowed where the business would be unduly disrupted if the leave took place on the dates initially requested by the employee. Employers would need to give counter-notice to the employee if they are postponing the leave.

Pay during carer's leave

The leave is unpaid.

Of course, it is up to the individual employer as to whether they want to enhance this and provide full pay but the legislation states that the right is to unpaid leave. 

Rights and protections during carer's leave 

 

Employees will have the right to return to the same job.

 

An employee will be protected from suffering a detriment or discrimination arising from them taking or requesting this type of leave. They can bring a claim to an employment tribunal if they are treated in this way. 

If an employee is dismissed because they have requested or taken carer’s leave, this will be an automatically unfair dismissal. 

The employee has three months from the matter complained of to bring such claims within the employment tribunal.

If successful, the employee may be awarded compensation which the tribunal considers just and equitable in all the circumstances including the employer’s behaviour and any consequential loss sustained by the employee.

 

One of our employees has left work early on six occasions this month. On each occasion they have said that they need to leave urgently because their child has been taken ill. Each time the child's school had phoned the employee and asked them to come to collect the child. 
 
When the employee 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. The employee's line manager does not accept that the child can be ill on six occasions within one month, and does not think that the reasons they have given for leaving early are genuine. On that basis, the manager 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.

My employee has just told me that their child’s school has called and told them that they must take the child home, as they have become unwell with what could be flu-like symptoms. Do I have to let them go?

A.  In early 2023, the UK Health Security Agency (UKHSA) issued advice that children should be kept home from school if they are feeling unwell as a result of an increase in Strep A, flu and covid cases. This is not government advice but merely guidance. This extends to considering sending children home if they become unwell at school. Therefore, there may be an increase in employees wanting to leave work to collect sick children.

Employees have the statutory right to take time off to care for those dependent on them. This is an unpaid right and is to be used in unexpected situations where their dependent is in need of urgent support, such as where they become unwell and need to leave school or have an accident. If the employee needs to, they can leave work under this right to provide immediate care to the dependent, and then make arrangements for further care. This does not give the right to an extended time off.

Due to this right, you should let this employee leave to collect their child. Ask them to keep you informed of what is happening, and to contact you when they know whether or not they expect to be in work tomorrow. Again, they do not need to be paid for this time.

An employee’s child has woken up feeling unwell, and they are worried it could be a Strep A case, or some other virus. They have said they need to look after the child, as they cannot go to school, and will need to speak to their doctor. How should this day be treated, as annual leave? Sick leave?

A.  Advice issued by the UK Health Security Agency (UKHSA) is that children should be kept home from school if they are feeling unwell as a result of an increase in Strep A, flu and covid cases in early 2023.

Employees have the statutory right to take time off to care for those dependent on them. This is an unpaid right and is to be used in unexpected situations where their dependent is in need of urgent support, such as where they are unwell and cannot go to school.

Due to this right, you should tell the employee they do not have to attend work that day if they have no other choice, and that this leave will be unpaid time off for dependents leave. Ask them to keep you informed of what is happening, and to contact you when they know whether or not they expect to be in work tomorrow.