The EAT has provided guidance on when an employee may take time off to care for a dependant under section 57A of the Employment Rights Act 1996 (ERA). Using the relevant legal language from the ERA in speech marks, this case focused on a situation where there was an "unexpected" disruption/termination of childcare arrangements which meant that it was "necessary" for a parent to take time off work.
Mrs Harrison, a part-time employee and mother of two, was given two weeks' notice by her childminder that she could not work on a specific day. Mrs Harrison tried to make alternative arrangements, but failed to do so and so a few days later she told the Royal Bank of Scotland (RBS) that she would need to take the specified day off work. A week later, RBS told her that her request had not been granted as it could not find someone to cover for her, and that if she took the day off the absence would be unauthorised. Without a replacement childminder, Harrison had to take the day off work. This resulted in a formal disciplinary warning, which she unsuccessfully appealed against.
Harrison brought a tribunal claim, and the tribunal considered whether she had suffered a detriment due to exercising her statutory entitlement to time off. The tribunal found in Harrison's favour, and held that even though she had two weeks to make alternative arrangements for her childcare, the unavailability of her normal childminder was "unexpected" when she made the request and the time off was ultimately "necessary" as a result of that unexpected unavailability. The EAT upheld the decision.
Previously it had been thought that requests made more than a day or two in advance were unlikely to qualify for "emergency leave", but this case demonstrates that each case must be considered on its own merits and it is a question of fact for the tribunal to decide if time off is necessary - where the leave requested is "necessary" on the facts and unexpected, the right to time off will exist.
The employer's failure to respond to the request for more than a week is perhaps worth noting, as had the employer responded promptly, it may have been possible for Harrison to find suitable alternative childcare arrangements (with the result that the time off would not be "necessary" under section 57 ERA). Indeed, the EAT stressed that the greater the time to make alternative arrangements, the less likely it will be "necessary" to take the time off. However, as we