When the right to take reasonable time off from work in order to take care of dependants was brought into force on 15 December 1999, there was concern that this provision would lead to a “slackers’ charter” in some quarters. The principal concern was that the rather widely drafted right – contained in section 57A of the Employment Rights Act 1996 – would provide reasonable arguments for some employees to take time off from work for long periods, or at very short notice, with the employer not daring to do much about it in view of the possibility of a tribunal claim being made. These fears, however, appear to have been unfounded and since its introduction, we have heard very little about this right in case law, implying that a commonsense view is being taken by all concerned.
The right to take time off to care for dependants derives from clause 3 of the Framework Agreement on Parental Leave, adopted by the 1996 directive of the EU on Parental Leave. The directive obliges member states to take necessary measures to entitle workers to time off from work on grounds of “force majeure” for urgent family reasons in cases of sickness or accidents. The tight wording of this provision was initially interpreted in a broad way by the UK Government in its consultation paper, leading to an outcry from employers, who foresaw a large scale take-up of the right. In its final form, however, the right was more circumscribed. The right to a reasonable amount of time off work is to be permitted:
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
d) Because of the unexpected disruption or termination of arrangements for the care of a dependant
e) To deal with an incident involving the child of the employee which occurs at school unexpectedly
Little guidance is given as to what is a “reasonable amount of time off”, but it is clear that there is no statutory obligation to allow paid time off. This has probably had the effect of limiting such absences to their absolute minimum. It is worth bearing in mind, however, that the time off could be days or possibly even weeks in, for example, the instance of a death of a dependant. Dependants are defined as a spouse, child, parent or co-habitee of the employee, other than a tenant, lodger or boarder. In the cases of (a) (b) and (d) above a dependant may also be an individual who reasonably relies upon the employee for assistance.
Although some employers have incorporated the new statutory right in to their staff handbooks, many have simply relied upon their existing compassionate leave policy. However, if employers fail to adhere to the law, any employee dismissed or subjected to a detriment for taking or proposing to take advantage of this right may have a tribunal claim.