Aims of the policy
The policy aims to enable employees to take time off from work to deal with emergencies that have arisen in relation to people who depend on them, without being penalised by their employers. The statutory rights only extend to emergencies and not situations that are known about in advance. There is also no statutory requirement for paid time off.
Having a written and easily accessible policy in place to deal with employees’ rights to take time off for such emergencies is one way of promoting fair and consistent treatment for all employees.
Furthermore, if an employer refuses to allow him/her to take time off to deal with emergencies or subjects him/her to a detriment as a result of that request, the employee may complain to an employment tribunal. If an employee is dismissed as a result, a tribunal will find him automatically unfairly dismissed. If the employee is female, there may also be a risk of a claim on grounds of indirect sex discrimination.
Preparing a policy is also a good opportunity for employers to clarify their approach and, in particular, consider whether to give their employees rights over and above the statutory minimum requirement.
Who is it for?
The right to take emergency time off is set out in the Employment Rights Act 1996 and benefits all employees, namely any individual (male or female, full time or part time) who has entered into or works under a contract of employment (whether that is an express or implied, written or oral contract). There is no minimum period of qualifying service required.
Under these rules, all employees with dependants (as defined below) can take a reasonable amount of time off work if they need to deal with certain specified emergencies relating to their dependant. This means that all employers need to be aware of the rights and the potential consequences if they refuse the employee this time off work or if they dismiss the employee or subject him/her to a detriment as a result.
To come within the definition of a “dependant” the relevant person must be one of the following:
- the employee’s husband, wife or civil partner
- the employee’s child
- the employee’s parent
- someone who lives in the employee’s household (who is not the employee’s own employee, a tenant, lodger or boarder)
- someone who reasonably relies on the employee for assistance if they fall ill or are injured or assaulted or to make arrangements for the provision of their care in the event of illness or injury
Employees may take a “reasonable amount of time off” during work hours to take “action which is necessary”:
- to provide help if a dependant falls ill (mentally or physically) or gives birth or is injured or assaulted
- to make care arrangements if a dependant is ill (mentally or physically) or injured
- in consequence of the death of a dependant
- because of the unexpected disruption of termination of arrangements for the care of a dependant
- to deal with an unexpected incident involving their child that occurs while the child’s school is responsible for him/her.
The right to emergency leave does not apply unless the employee tells his employer the reason for his absence “as soon as reasonably practicable” and how long he expects to be absent (unless it is not reasonable for the employee to tell the employer the reason for his absence until after this return to work). Any policy should therefore set out expected time scales for receipt of this information and make it clear what situations the employer will allow an employee to actually take emergency leave.
What is “reasonable” time off is judged by the employer looking at the employee’s circumstances (and not the potential disruption to the employer) so any policy must make this clear. In most cases, time off work will amount to one or two days but of course may be longer depending on the specific situation. For example, the employee may have friends or relatives who can assist, depending on the gravity of the emergency.
Additional elements to consider
The statutory right to time off work is unpaid. An employer may want to consider the benefit of offering its employees paid leave, widening the application of the policy beyond employees to include other types of worker or to include other emergency situations of which the employee may have had some notice or which are simply not covered in the Act, such as house fire or flood etc.
The right to time off in consequence of the death of a dependant has been judged to cover time off to make funeral arrangements or to attend a dependant’s funeral but not time off as a result of the emotional consequences and grief associated with the death of a dependant. Many employers will allow some time off as compassionate leave and, if so, this should be referred to separately within a policy to avoid any doubt arising.
Finally, employers who are concerned that abuse of the right to time off to care for dependants may become an issue, should consider stating that abuse of the right is a specific disciplinary offence under their disciplinary procedures.
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