Time off for Dependants

Under the Employment Rights Act 1996, employees have the right to take a reasonable amount of unpaid leave in circumstances where there is an unforeseeable situation affecting a dependant. This may apply where a dependant falls ill, where care arrangements break down or where there is an incident at a child’s school which needs attention.

One requirement placed on employees seeking to take time off for dependants is to tell their employer both the reason for their absence – as soon as it is “reasonably practicable to do so” – and how long they expect to be away from work. Employees who comply with the rules are protected from dismissal as a result, and any dismissal by reason of an employee seeking time off in accordance with these rights will be automatically unfair.

In a rare case considering this protection, the Employment Appeals Tribunal (EAT) was recently called upon to decide whether or not an employee had been automatically unfairly dismissed in circumstances where the notice requirements were not strictly complied with. In the instant case, an employee was already subject to a final written warning as a result of attendance issues. A few months later, he accompanied his heavily pregnant wife to the hospital during working hours. Rather than contacting the employer himself, however, he arranged for his father to explain the situation to the company. The employee then returned home in the evening.

The following day, the employee again attended the hospital as his wife gave birth. No contact was made on this day either. On his return to work, the employee was eventually dismissed with notice (following on from his live final written warning) for failing to make reasonable efforts to inform the company of his absence.

Both the Employment Tribunal and EAT dismissed the employee’s claim that he had been automatically unfairly dismissed for taking dependant leave. His defence to the allegations centred around him having lost charge on his mobile phone, resulting in him contacting his father from the hospital payphone as he could not remember the employer’s number. However, the Tribunal suggested the phone could have been charged and contact made on his return home.

On that basis, both the Tribunal and the EAT found that contact was not made “as soon as reasonably practicable”. They found that contact could have been made on the first day while the employee was going to and from the hospital, or before attending the hospital on the following day.

The case highlights that there is some power available to employers in circumstances where an employee is exercising rights to take dependant leave. Companies are entitled to treat absence as a disciplinary matter where notice requirements are not complied with, although a detailed examination of the facts will always be necessary. It is also important that employers do not take into account its own operational needs in any decision (which can be tempting) as this is likely to impact on the Tribunal’s analysis of the reason for any subsequent dismissal.