Time off to Care for Dependants: What are your Obligations?
It may be due to school holiday season, but recently a number of employers have been struggling with employees who are taking a lot of time off to care for dependants. Employees seem to be using this to supplement their holiday entitlement or to avoid using sick leave, when they might be close to hitting trigger points under an absence management policy.
Employees tend to be aware of their statutory right to such time off, which can make employers uncomfortable about refusing the leave. However, employers are not required to provide what is essentially a childcare service for employees, by allowing them additional time off work and particularly those businesses that already provide some paid time off often feel that employees are taking advantage of them. So what is the statutory right and when do you have to uphold it?
Section 57A of the Employment Rights Act 1996 provides employees with the right to take reasonable unpaid time off in certain circumstances to care for a dependant. First, it is worth noting that this right only applies to employees and not to workers, which may be relevant if you have casual staff or bank workers. Secondly, the time off is meant to cover specific circumstances, either:
- When a dependant falls ill, gives birth or is injured or assaulted, or
- To make arrangements for someone to care for a dependant who is ill or injured, or
- To deal with the death of a dependant, or
- To deal with the care of a dependant when the current arrangement is terminated or disrupted for any reason, or finally
- to deal with an incident which involves a child of the employee and which occurs unexpectedly whilst that child is at school or nursery.
The right to time off only applies if the situation falls within one of those circumstances. Anything falling outside of these examples (such as a house fire or the boiler breaking) will need to be dealt with separately.
The most common situation is where a child is sick or their care arrangements fall through, but it is worth bearing in mind that the employee is only entitled to 'reasonable' time off, which would usually be a day or two, and that this should be in unplanned, emergency situations. The courts have confirmed that the statutory right does not enable employees to take time off to provide personal care for a sick dependant, "beyond the reasonable amount necessary to enable them to deal with the immediate crisis". In addition, it is clear that the statutory right does not enable the employee to take additional or ongoing time off to care for the dependant themselves, so they will need to request annual leave for shorter periods after any immediate crisis. If they have no other option long term, they will need to consider requesting flexible working to amend their working hours, if they need to care for the dependant themselves. Employers should be mindful of the risk of an associative discrimination claim when dealing with a flexible working request, since employees are able to bring discrimination claims based on their association with another person who has a disability. It will therefore be necessary to have this at the back of your mind when considering requests where, for example, a child might be disabled.
It is also worth noting that the definition of 'dependant' includes a spouse, civil partner, or parent (but not grandparent) of the employee, as well as children, or a person who lives in the same household as the employee, but excluding tenants or lodgers. This could be fairly broad, but it will be somebody who relies on the employee for care.
There are obviously a number of different strands to this entitlement and so it is worth spending some time deciding if an employee's circumstances falls within the statutory framework, particularly if you think the employee is taking advantage, rather than feeling forced to allow the time off. You do need to make sure that you are being consistent across your workforce, but it may be that you can be more robust when dealing with these requests. If you have concerns or would like to discuss this in more detail, please feel free to contact a member of the Employment team.