Employees rights to emergency leave

As an employer, you have a legal obligation to give your staff time off to deal with emergencies affecting their dependants. Stephan Weber, a trainee solicitor at Sykes Anderson LLP, explains who is entitled to time off and under which circumstances you should give it to them. What is time off for dependants? Employees have a right to take a reasonable amount of time off work to deal with certain unexpected or sudden emergencies affecting their family and to make necessary longer-term arrangements. Who qualifies for the right? The right is available to all employees, whether they work full-time or part-time, and there is no qualifying period – an employee is entitled to the right from the first day of employment. Who counts as a dependant? A dependant is defined as the husband, wife, civil partner, child or parent (but not grandparent) of the employee. An elderly relative who lives in the same household as the employee also counts. However, tenants or lodgers living in the family home are not included. Others who rely solely on the employee for help in an emergency may also qualify. In what situations can an employee take time off? The right enables employees to take time off in the following situations:

• If a dependant falls ill or has been injured or assaulted
• When a dependant is giving birth
• To make longer-term care arrangements for a dependant who is ill or injured
• To deal with the death of a dependant, including making funeral arrangements and attending the funeral, applying for probate and meeting with probate officers
• To deal with an unexpected disruption or breakdown of care arrangements for a dependant
• To deal with an unexpected incident involving the employee’s child during school hours.

Under the statutory right, an employee is only entitled to take time off for dependants in the situations listed above. Other emergencies, such as a breakdown of the central heating or a burst water pipe, remain a matter to be determined solely between the employee and their employer. Can both parents take time off work if their child falls ill? There may be times when it is necessary that both parents take time off, for example if their child has had a serious accident. However, much will depend on the circumstances of the particular case and government guidance suggests that both employer and employee should adopt a common sense approach in these situations. How much time off can an employee take? The employee is entitled to take a reasonable amount of time off. What is reasonable will depend on the circumstances of each case. The nature of the incident, the closeness of the relationship between the employee and the dependant and the extent to which another person is available to assist are all relevant factors. In most situations, one or two days should be sufficient. If a child falls ill, this will give the employee enough time to see a doctor and make other arrangements for the child, if necessary. The employee is not entitled to take two weeks’ leave to look after the sick child. What if the employee knows in advance that a problem is going to arise? As the right only covers emergencies, it will generally not apply if the employee knows in advance that something is going to happen. If an employee knows beforehand that they are going to need time off, they may be able to arrange this with their employer by taking another form of leave. How often can the employee rely on the right to time off? The right is intended to cover all genuine emergencies and there is accordingly no limit on the number of times an employee can be absent from work if an emergency occurs. Does an employer need to keep records of time off, taken under this right? Employers are not required to keep records of time off taken but it is recommended that they do. Is the time off paid? The legal obligation for an employer is only to provide unpaid leave but an employer may, of course, choose to enhance the right by paying employees for some or all of their absence. The employment contract of the relevant employee should be consulted for any provisions that deal with these situations. What remedies are available to employees for breach? While any disputes should ideally be resolved internally, an employee who is wrongly refused permission to take time off or who is subjected to a penalty or detriment for taking it (or seeking to take it) may apply to an employment tribunal for compensation. An employee who is dismissed for taking (or seeking to take) time off, may bring a claim for unfair dismissal, whether or not they have completed one year’s service. Any claim must be brought within three months of the date on which the refusal, detriment or dismissal occurred. Where a claim relates to a detriment or constructive dismissal, an employee is required to first raise their complaint as a grievance, in accordance with the statutory grievance procedure, before lodging their employment tribunal claim. However, rather curiously the statutory grievance procedure does not apply to claims for refusal of time off. What obligation does the employee have to give notice? It is not necessary to give notice in writing but employees must tell their employer, as soon as reasonably practical, the reason for their absence and how long they expect to be away from work. The employee must also give sufficient information to enable their employer to determine that their time off meets the statutory right. The legislation does not require the employee to produce any evidence of their need to take time off but there is also nothing preventing the employer to request appropriate evidence. What practical steps can an employer take to prevent abuse of the right? To prevent abuse an employer should put in place a clearly worded policy:

• Setting out the circumstances in which an employee may take time off and any (reasonable) evidence which the employer may require
• Setting out the notification procedure that the employee is required to follow
• Stipulating the penalties for abusing the right and for failing to follow the notification procedure
• Explicitly stating that abuse or breach of the policy will result in disciplinary proceedings being instigated.

The policy should be publicised and the employer must ensure that the policy is enforced consistently throughout the workforce. Both employers and employees should be aware of the existence but also of the limitations of the right to time off work. In genuine emergencies, employees will not depend on their employer’s approval to take time off. On the other hand, in order to prevent abuse of the right, employers should clearly set out the circumstances in which an employee will be entitled to the right and the notification procedure that needs to be followed.