With widespread industrial action taking place throughout March, employees may be wondering what to do about work if their care responsibilities are disrupted.
Where an emergency arises involving an employee’s dependants (which includes children), the employee has a statutory right to take a reasonable amount of unpaid time off to take the action necessary to deal with the situation. Beyond children, “Dependants” also includes an employee’s spouse or civil partner, a parent or a person living in the same household (who is not a tenant, lodger, boarder or employee).
In the current climate, employees may seek to take time off if school closures caused by strikes disrupt their childcare arrangements and they need to change their plans at the last minute. However, for many employees, this will not be possible because the law requires that any disruption of care for an employee’s dependant is unexpected. Employers can reasonably argue that employees should have made alternative arrangements if a disruption to care can be at all expected on that particular day.
Beyond the disruption of care needing to be unexpected, there are other criteria to the right to time off to care for dependants that employees need to be aware of. Jack Johnson, solicitor in B P Collins’ employment team, has laid out some key considerations for, firstly, affected employees and, secondly, employers below.
Employees
- An employee’s statutory right to time off for dependants only applies if the employee tells their employer the reason for their absence as soon as reasonably practicable. What is reasonably practicable might depend on whether the employee had available means to contact their employer to confirm their absence, for example, access to a mobile phone or a laptop.
- The employee is legally required to inform their employer how long they expect to be off work unless it is not reasonably practicable for the employee to confirm this until they return to work.
- There is no limit to the amount of time an employee is entitled to take off. What represents “reasonable” time off will depend upon the nature and circumstances of the incident causing the time off and the employee’s individual circumstances. Where an employee’s child’s school is closed unexpectedly and time off is permitted, a “reasonable” amount of time off might be until alternative childcare arrangements can be made.
- What is considered “necessary” action justifying an employee’s time off will depend on the circumstances in each case. However, relevant considerations include the nature of the incident triggering the time off, the closeness of the employee to the dependant and the extent to which another person could have assisted the employee to avoid them having to take the time off.
Employers
- Any disruption to the operations of the employer’s business caused by an employee’s time off should not be taken into account when determining what amount of time off is reasonable.
- Employers cannot generally require employees to produce evidence of the need to take time off. However, they can request appropriate evidence if they have reasonable grounds to request it and provided doing so is not discriminatory and will not subject the employee to a detriment.
- If an employer has reasonable grounds to suspect an employee is abusing the statutory right, they should deal with the matter internally in accordance with their disciplinary procedure or their time off for dependants policy.
- While the statutory right available to employees is for unpaid time off, an employer could choose to pay its employees for all or some of the time off. This arrangement could be made subject to conditions that the employer needs the employee to comply with if they are to receive pay for that period.
To ensure employees are aware of how the right to time off for dependants operates, and to avoid it being misused, employers should implement a clear policy laying out the procedure for employees to follow. Employees should be given easy access to the policy and employers should ensure it is applied consistently throughout the workforce.
Where an employee asks for emergency time off but the statutory right does not apply, employers might explore whether the employee can take the day as holiday if possible. Ultimately, employees and employers should be respectful of each other’s needs to try and reach a compromise.
B P Collins’ employment team is highly experienced in advising employers and employees on issues such as those covered in this article. For further information or to seek advice, please email enquiries@bpcollins.co.uk or call 01753 889995.
