Time off for emergencies – Legal Q&A

Employees have the right to take a reasonable amount of time off work to deal with unexpected or sudden emergencies affecting their dependants and to make any necessary longer term arrangements. Dependants include spouse, civil partner, child, parent and those who rely on the employee for assistance or to make arrangements for the provision of care.

Q What particular rights do employees have to take time off for dependants?

A The rights are set out in Sections 57A and 57B of the Employment Rights Act 1996. The right is available to full- and part-time employees employed on a permanent, temporary or fixed-term basis. It does not apply to members of the Police Service or certain types of fishermen. Employees are entitled to this right from day one of employment and there is no limit as to how many times the employee can exercise the right. But the right is only for unexpected or sudden emergencies. If an employee knows in advance that they need time off they should request annual leave in the usual way or apply for parental leave if it relates to their child.

Q What is a reasonable period for them to be absent?

A The legislation does not specify what a reasonable amount of time would be as it will depend on individual circumstances. The leave should be long enough to enable the employee to deal with the crisis. In most cases, one or two days should be sufficient.

Q How much does an employer have to pay them?

A Nothing. The right is to unpaid leave only. An employer could choose to pay at its discretion and, if it did so, it would be advisable to stipulate further conditions with which the employee must comply to receive payment.

Q What happens if a request is refused or if an employee is dismissed because of the request?

A An employee can complain to a tribunal if time off has been refused or they have suffered a detriment – ie, denial of promotion or training opportunities – for taking or requesting time off. An employee can claim unfair dismissal if they have been dismissed because of the request.

Q How can an employer prevent an abuse of this right?

A An employer could:

  • set out notification procedures that the employee is required to follow

  • set out penalties for abusing the right and failing to follow notification procedures

  • state in the disciplinary procedure that abuse or breach of the policy will result in disciplinary proceedings being instigated

  • publicise the policy so that employees cannot claim that they were not aware of their obligations

  • ensure that the policy is enforced consistently throughout the workforce.

There is no statutory requirement for employees to produce evidence of the sudden or unexpected emergency or their relationship with the dependant. It is advisable for an employer to set out in a flexible working or caring rights policy that evidence will or may be requested, especially if an employer has reasonable grounds to suspect that an employee has abused or is seeking to abuse the right.

Q What happens if cases go to tribunal?

A If a tribunal finds the complaint of refusal or detriment well founded it will make a declaration to that effect and may order compensation. The amount of compensation awarded will be based on the employer’s default and loss sustained by the employee. If a tribunal finds that an employee has been unfairly dismissed it can order reinstatement, re-engagement or compensation. Compensation will be calculated in the usual way for unfair dismissal claims.

Q How should an employee make a request that’s valid under the regulations?

A The employee should tell their employer the reason for their absence and how long they expect to be away from work as soon as practicable. There is no requirement for the request to be in writing. There may be exceptional circumstances where an employee returns to work before it was possible to contact the employer. They should tell the employer the reason for their absence on returning.

Q What grounds are there for refusing a request?

A An employer can refuse a request if it considers that the request is unreasonable. However, an employer will then face the risk of defending a claim for compensation in an employment tribunal.

Nick Sheppard, employment partner, Langleys

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