It’s a fact of life that many employees have care commitments that will, on occasion, impinge on their work and require them to take time off to deal with them. This can often be at very short notice or with no notice whatsoever. Dependant leave is a right given to employees by Section 57a of the Employment Rights Act 1996, which covers the definition of a dependant and the circumstances in which an employee is entitled to leave to attend to their care. That leave is unpaid, although an employer may have established terms and conditions with the employee whereby said leave is paid; it depends on the individual circumstances of the employee’s contract.
Who is entitled?
The right to take time off applies to all employees, regardless of gender, length of service, full or part-time status or permanent/fixed-term status.
What is a Dependant?
Subsection 3 of Section 57a defines a ‘dependant’ as
(a) a spouse or civil partner,
(b) a child,
(c) a parent,
(d) a person who lives in the same household as the employee, otherwise than by reason of being his employee, tenant, lodger or boarder.
Subsections 4 and 5 qualify this definition further:
(4) …“dependant” includes, in addition to the persons mentioned in subsection (3), any person who reasonably relies on the employee –
(a) for assistance on an occasion when the person falls ill or is injured or assaulted, or
(b) to make arrangements for the provision of care in the event of illness or injury.
(5) …“dependant” includes, in addition to the persons mentioned in subsection (3), any person who reasonably relies on the employee to make arrangements for the provision of care.
What Dependant Leave covers
It’s important to note that the Act does not allow time off to provide care, but to take action that is necessary as a result of an unexpected occurrence regarding a person for whom that employee delivers care. It’s also worth noting that the leave is to deal with emergencies and unforeseen events and that if the employee has advance warning of the event or care need, the entitlement does not apply.
The Act says:
(1) An employee is entitled to be permitted by his employer to take a reasonable amount of time off during the employee’s working hours in order to take action which is necessary —
(a) to provide assistance on an occasion when a dependant falls ill, gives birth or is injured or assaulted,
(b) to make arrangements for the provision of care for a dependant who is ill or injured,
(c) in consequence of the death of a dependant [which can include attending a funeral],
(d) because of the unexpected disruption or termination of arrangements for the care of a dependant, or
(e) to deal with an incident which involves a child of the employee and which occurs unexpectedly in a period during which an educational establishment which the child attends is responsible for him.
(2) Subsection (1) does not apply unless the employee —
(a) tells his employer the reason for his absence as soon as reasonably practicable, and
(b) except where paragraph (a) cannot be complied with until after the employee has returned to work, tells his employer for how long he expects to be absent.
Note the words “reasonable” and “reasonably”. Though subject to individual interpretation, they may well be tested in court, and the case of Ellis v Ratcliff Palfinger Ltd (2014) is one such instance. In some cases, the employer will include provision in the employee handbook or contract of employment to state what they consider to be ‘reasonable’ and ‘reasonably practicable’ and employees should bear such provisions in mind.
What doesn’t count
Emergencies that relate to the employee’s home, such as a fire, flooding, burglary or the malfunction of a domestic appliance (for example, the central heating) will not count for the purposes of dependant leave. Neither will taking dependants to pre-arranged medical appointments, relationship problems and other personal crises or dealing with an illness or injury of a family pet, traumatic though such events can be.
It can be a real problem for employers if a member of staff seems continually to be asking for time off to look after dependants. The law says that the time off has to be reasonable and if the employer does not feel that this is the case, they may wish to discuss the leave request with the employee and see if there is another way that the situation can be resolved; for example, by the use of compassionate leave.
If an employee is dismissed because they have taken dependant leave, the dismissal is automatically unfair.