TIME OFF FOR DEPENDENT LEAVE
A common issue for the advice line lately has been the right of employees to dependents leave and how to deal with these issues. As the holiday season approaches it seems an opportune time to remind employers what the rules are in this respect.
Dependent leave is unpaid time off work to deal with certain unexpected emergencies involving someone who depends on the employee. Employees who are dismissed for taking dependents leave are deemed to have been automatically unfairly dismissed. The employee has this right from day one of employment and it covers temporary staff and part-time staff but not the self-employed.
A dependant is defined as a:
- spouse (or civil partner),
- parent (but not grandparent) of the employee, or
- a person who lives in the same household of the employee (otherwise than as a lodger or tenant).
In addition, those that reasonably rely on the employee to provide assistance if they fall ill or to arrange for the provision of care, for example, an elderly neighbour, may also be a dependant for the purposes of the legislation.
The legislation is specific and provides that an employee is entitled to take reasonable time off where it is necessary:
- to provide assistance if a dependant falls ill, gives birth, is injured or assaulted;
- to make care arrangements for the provision of care for a dependant who is ill or injured;
- in consequence of the death of a dependant;
- to deal with unexpected disruptions, termination or breakdown in arrangements for the care of dependant; and
- to deal with an unexpected incident which involves the employee's child during school hours
other events such as flooding or other household emergencies are not covered by this statutory right.
The Employment Appeals Tribunal have clarified that the right is for a ‘reasonable amount of time off’. They have not said how long this is but that in the vast majority of cases, it only means hours, or a day or two at most!
However, they also stated that disruption or inconvenience caused to the employer’s business are irrelevant factors that should not be taken into account when considering whether the leave was reasonable
In order to exercise the right employees need to tell you as soon as reasonably practicable, of the reason for their absence (unless it is not reasonable to do so until they return to work) and how long they expect to be away.
So can you manage these kinds of absence?
The short answer is yes but you need to tread carefully. Npower were made to pay an employee £1,000 when they issued them with a formal warning when she had taken 7 days of dependents leave in a year. However, in another case an employee failed to tell his employer ‘as soon as reasonably practicable’ of the reasons for his absence (taking pregnant partner to hospital) and was dismissed the employee lost his claim for unfair dismissal.
When the request is made, it is essential that you need to keep a good written record of what the employee says about the expected length of absence and the reason for it. Also, make a note of the time that the call was made.
If you can establish that the employee called in too late, and/or that they failed to estimate the length of absence, or if there is a genuine reason to doubt the genuineness of a request for dependents leave this should be dealt with as a misconduct issue and fully investigated under your procedures.
and, of course you can always ring Sentient for advice.