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 well as considering the time available to make alternative arrangements, each instance must be considered on its own facts, and factors such as the nature of the disruption (to the childcare arrangements) and the availability and cost of any alternatives will also be relevant to whether or not any given absence is “necessary”.
Key points
- Emergency leave to care for dependents does not just apply in sudden or emergency situations – where on the facts it is necessary for an employee to take time off work due to unexpected circumstances, the employee has a right to the time off without suffering any detriment as a result.
- Even where the requested time off work is some way off, the disruption or termination of the childcare arrangements may still be “unexpected” and the time off may still be “necessary”.
- Factors such as the availability to the employee of reasonably priced alternatives may be relevant where an employee’s childcare arrangements are terminated or disrupted.
What you should do
- You must ensure that you act promptly and reasonably when responding to requests for time off work to care for dependants. Treat any such request with caution and obtain all the facts. While such absence is often referred to as “emergency leave”, it is important to note that time available to the employee to make other arrangements is not the only factor when considering whether it is necessary for the employee to take the time off work.
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