The recent ruling in the Employment Appeal Tribunal case of Cortest v O’Toole has finally given some clear guidance on the circumstances and length of time that people can take as emergency time off to care for dependants. But what is the right, and what does this new case mean for HR professionals?
Q What is the right to emergency time off for dependants, and who can exercise it?
A Under the Employment Rights Act 1996, all employees (regardless of their length of service) have the right to take a ‘reasonable’ amount of unpaid time off work without notice to deal with particular unexpected emergencies affecting their dependants.
Q Who is classed a ‘dependant’?
A A dependant is a husband, wife, civil partner, child or parent, or someone living in the employee’s household as a member of their family. It also includes someone who reasonably relies on the employee for assistance as their primary carer (for instance, an elderly neighbour).
Q When can the right to time off for dependants be exercised?
A It covers a wide range of situations, but it must be a genuine emergency that the employee was not aware of in advance. This can include:
- If a dependant falls ill, or has been injured or assaulted (including time to make longer-term care arrangements for such a dependant)
- When a dependant gives birth
- Where a dependant dies
- To deal with an unexpected disruption or breakdown of care arrangements for a dependant
- To deal with an unexpected incident involving the employee’s child during school hours.
Q What notice must the employee give?
A Given the nature of the right, the employee does not need to give notice to the employer in writing. They must tell you, as soon as possible, the reason for their absence, and how long they expect to be away from work.
Q What if the employee is taking emergency time off on a regular basis, or you think the absences are not genuine?
A Again, given the nature of the right and the fact that the leave is classed as unpaid, there is no limit on the number of times an employee can exercise this right.
If, as an employer, you suspect an employee is abusing the right to emergency time off, then it should be dealt with in line with normal disciplinary procedures. If this results in a dismissal, then the employee can make a valid claim for automatic unfair dismissal if he or she can convince the tribunal that they were dismissed for asserting their statutory right. So it would normally be sensible to err on the side of caution.
Q How much time can be taken off?
A An employee is allowed ‘reasonable’ unpaid time off. What is defined as reasonable will depend heavily on the circumstances. This was the main issue in the Cortest v O’Toole case. The tribunal ruled that an employee does not have the right to take up to a month off to care for a child when childcare arrangements break down.
The case reinforces that the right to time off is only for dealing with the immediate crisis. If the employee needs more time off, then this is better dealt with via annual or parental leave.
Q What should HR professionals be doing?
A When an employee asks to exercise the right to take emergency time off to deal with an unexpected emergency affecting a dependant, the employer should ascertain precise reasons for needing to take leave, and how long the employee needs to deal with it.
While this may be easier said than done with a frantic employee on the other end of the line, it is beneficial for both parties in the long run. It helps to establish what category of leave the employee is actually requesting, thereby avoiding any uncertainty for both parties going forward.
As a general rule, if the employee asks for more than one or two days off to deal with the crisis, then it is probably better dealt with by means other than emergency dependant leave. It may also be sensible to check that your employee guidance covers such requests, and is clear on precisely how and when such a right applies.