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A fairly regular area that we are asked about is how to handle employees who are taking time off to look after dependants and whether the time off is actually protected by legislation.
There have been very few decisions at the appeal level on the right to time off for dependants but the facts of the recent case of Eliis v Ratcliff Palfinger Ltd highlight the need for employees to ensure that they make contact with their employer to tell them why they are absent as soon as reasonably practicable for them to do so. If employees find themselves in difficulty, they must find a means as soon as they can of putting their employer in the picture.
By way of a reminder, under the Employment Rights Act 1996, employees are entitled to take a reasonable amount of unpaid time off work to take necessary action to deal with particular situations affecting their dependants. If an employer dismisses an employee and the reason for an employee's dismissal (or, if more than one, the principal reason) is that they took or sought to take time off in accordance with this right, the employee will have been automatically unfairly dismissed. But in considering whether an employee has taken a reasonable amount of time off, factors that will be taken into consideration will be as follows: -
- It is not possible to specify a maximum reasonable period of time in any particular circumstances because ERA 1996 does not limit the amount of time an employee is entitled to take off. However, in most cases it is likely that no more than a few hours or, at most, one or possibly two days would be regarded as reasonable to deal with a particular problem.
- What a reasonable amount of time off is will depend upon the nature of the incident and the employee's individual circumstances.
- Disruption or inconvenience caused to the employer's business should not be taken into account.
However, the right to time off only applies if the employee tells their employer both:
- The reason for their absence, as soon as it is reasonably practicable to do so.
- How long they expect to be away from work (unless it is not reasonably practicable for the employee to tell the employer of the reason for their absence until they return to work).
In this case the employee was off first because his partner was unwell and then because she had been taken into hospital to give birth. While the employee made contact through his father on the first day, he failed to contact his employer again until he received a text telling him to do so. The EAT upheld an employment judge's decision that the employee was not, in the circumstances, automatically unfairly dismissed for exercising the right to take time off for dependants.
Regardless of being distracted by impending childbirth, this case shows that an employee needs to think of and use any means at their disposal to contact their employer. Clearly being prepared with a telephone number stored in a fully charged mobile phone would have been the easiest means of contact in this case!
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Time off for dependants: failure to contact employer as soon as reasonably practicable