Dependants leave is not a case for unfair dismissal

Employees with caring responsibilities are entitled to take ‘dependants
leave’ when a child is ill, but employers should keep extensive records of when
they are absent

Employers should familiarise themselves with the recent judgment of the
Employment Appeal Tribunal in Qua v John Ford Morrison, Solicitors, 2003,
EAT/884/01. The decision sheds some welcome light on the amount of time an
employee may take as unpaid ‘dependants leave’ when a child is ill, and reminds
employers of the need to keep detailed notes of the telephone conversation when
an employee calls in to say that they will not be able to attend work.

Dependents leave

Dependants 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.

This protection is available for most employees, from day one of their job,
including those on fixed-term contracts and part-timers, but not to the
self-employed.

To benefit from this right, employees must inform their employer as soon as
practicable of the reason for their absence and how long they expect to be off
work. It is not necessary for the employee to give this notice in writing.

The Qua tribunal

The Qua decision was helpful because it made clear that the purpose of the
right is generally to enable employees to arrange care, not to provide it –
other than on, perhaps, the first day when a child falls ill and there is no
alternative.

It also confirmed that once the employee gives the initial notification to
their employer, there is no continuing duty to notify. The employment tribunal
had suggested there was a continuing duty on an employee to update the employer
as to their situation on a daily basis.

The Employment Appeal Tribunal (EAT) noted that the protection only applies
where the employee has taken "a reasonable amount of time off". It
refused to set down limits on what was reasonable, but said that in the vast
majority of cases, it only means hours, or a day or two at most.

Of concern for employers may be the EAT’s statement 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.

Of more comfort, however, may be the EAT’s view that an employee is not
entitled to use this right on an unlimited basis, even if they only takes a
reasonable amount of time on each occasion. What is reasonable is a question of
fact in each case.

Keeping records

The decision also serves as a reminder to employers to keep good records of
the telephone call from the employee, informing the employer of the absence.

Legislation states that an employee needs to tell their employer the reason
for their absence, and how long they intend to be absent, as soon as reasonably
practicable.

As a result, the EAT stressed that it is necessary for a tribunal to look at
each absence individually, to check whether due and timely notification had
been given.

The practical point for employers is that they need to keep a good written
record of what the employee says about the expected length of absence on each
occasion.

They also need to make a note of the time that the call was made. If they
can establish that the employee called in too late, and/or that they failed to
estimate the length of absence, then a tribunal may find that the employee was
not entitled to dependants leave, and so the dismissal was not automatically
unfair.

By Danielle Kingdon, employment partner, Osbourne Clarke

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