1 What particular rights do employees have to take time off for dependants?
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 force 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.
An employee is entitled to take time off for dependants:
- If they have a baby, fall ill or have been injured or assaulted. Illness includes physical and mental illness and need not be serious or life threatening. It can be as a result of deterioration of an existing condition. The dependent need not be physically hurt and may just require comfort and assistance.
- To make longer term care arrangements for an ill or injured dependant for example, employing a temporary carer
- To deal with the unexpected disruption or breakdown of care arrangements.
- To deal with death of a dependant, for example, to make funeral arrangements.
- To deal with an unexpected incident involving the employee's child during school hours, for example, if the child has been injured or suspended from school.
This 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.
2 What is a reasonable period for them to be absent?
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.
3 How much does an employer have to pay them?
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.
4 What happens if a request is refused or if an employee is dismissed because of the request?
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.
5 How can an employer prevent an abuse of this right?
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.
6 What happens if cases go to tribunal?
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 re-instatement, re-engagement or compensation. Compensation will be calculated in the usual way for unfair dismissal claims.
7 How should an employee make a request that's valid under the regulations?
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.
8 What grounds are there for refusing a request?
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.
9. Recent Developments
The Government is currently seeking to help businesses survive the economic downturn by reconsidering plans to increase parents' rights for flexible working. The Secretary of State for Business, Enterprise and Regulatory Reform, Lord Mandelson, has ordered officials to review policies in development so that businesses are less likely to make redundancies or go under. For example, the right to ask for flexible working was going to be extended in April 2009 from parents of children who are under six or disabled to parents of children up to the age of 16. Ministers are now reviewing the proposed extensions to flexible working. However, Labour MP Patricia Hewitt, who introduced the current law on flexible working, believes flexible working is of benefit in an economic downturn because it would be better for employers to ask employees if any of them wanted to reduce their working hours rather than deciding who to make redundant.