Feature: Examining the right to time off for dependants

Annie Hayes

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Feature: Examining the right to time off for dependants

By Annie Hayes

By Alison Wallace, head of employment practice, Steptoe & Johnson

In this feature Alison Wallace looks at the legal framework surrounding the employment right to take time off for dependants.

A recent appeal case could have major repercussions for working parents. The Employment Appeal Tribunal ruling in the South Central Trains Limited -v- Rodway case was that parental leave can only be taken in blocks of one week under the Maternity and Parental Leave Regulations 1999.

Mr Rodway tried to take one day’s parental leave to look after his son. He applied for annual leave but he was told it might not be guaranteed. This uncertainty encouraged him to make a written application for parental leave. He did not hear from his employer and two days before he was due to take the leave, he was told it wasn’t going to be granted because his job could not be covered.

At this stage he warned his employer once again that it would not be possible to attend work during the period he planned to look after his son. Rodway was later disciplined for being absent without permission.

Parental leave legislation
Parental leave was introduced to give any employee with at least one year’s continuous employment 13 weeks’ of unpaid leave in the first five years of a child’s life and up to four weeks in any one year. Despite the good intentions of the Regulations to allow for greater flexibility and the reconciliation of work and family life, the Appeal Tribunal in Rodway’s case held that parental leave had to be taken in blocks of one week only.

In many instances, a parent will not need to take off a whole week. If that cannot be covered by annual leave, then it may be covered under the dependants’ leave provisions.

Under Section 57A of the Employment Rights Act 1996, any employee is entitled to be permitted by their employer to take a reasonable amount of unpaid time off during working hours in order to take action which is necessary to provide assistance:

on an occasion when a dependant falls ill

to make arrangements for the provision of care for a dependant who is ill or injured

in consequence of the death of a dependant

due to the unexpected disruption or termination of arrangements for the care of a dependant

to deal with an incident which involves a child of the employee which occurs unexpectedly

Rodway could not take the benefit of that section because the Tribunal held that absence on 26 July did not arise from the unexpected disruption of arrangements for the care of his son. The Applicant had known about disruption to those arrangements for some six weeks before the disruption occurred.

When does Section 57A apply?
How many times may an employee exercise their right to dependants leave without running the risk of being dismissed and can the disruption to an employer’s business be factored into the reasonableness equation?

Long before there was a statutory right to time off, it was (and still is) relatively common for employers to allow employees to take time off with or without pay where a family crisis occurred. Likewise, employers would of course allow an employee time off to attend a funeral or for the purposes of bereavement.

The Employment Tribunals have looked at s.57 in a number of cases recently.

Case 1: Qua -v- John Ford Morrison (solicitors)

In January 2000 Ms Qua, a single mother started work as a legal secretary with a small firm of solicitors. Soon after she asked for and was allowed time off to attend to her four year old son who had suddenly been taken ill – it later transpired that the boy had an underlying medical condition and that relapses were not uncommon.

Over the next few months Ms Qua was off work for the same reason on a further sixteen occasions. There were two occasions when she was only absent for an hour or two but on several occasions she was absent for two or more days.

Eventually her employer decided that enough was enough and dismissed her. They claimed that her absences from work resulted in a noticeable reduction in efficiency and caused insurmountable difficulties.

Ms Qua complained that she been dismissed for taking advantage of her legal right to dependents leave and that in keeping with Section 99 of the Employment Rights Act 1996 her dismissal was automatically unfair. The Tribunal rejected her complaint.

She failed in a number of unspecified occasions to contact her employer on a daily basis both to advise of the reasons for absence and to indicate when she expected to return to work. On some occasions it was obvious she was just at home looking after her son herself (rather than making arrangements for his care).

The Tribunal held that she had had more time off than was reasonable in the circumstances and the employer acted reasonably in dismissing her.

At the appeal, it was held that the Tribunal had misinterpreted s.57A of the 1996 Act, and had not asked the right questions. In referring the matter back for a re-consideration of the facts by a differently-constituted tribunal, the EAT made the following points.

In determining how much time off is reasonable, an employer should always take account of the employee’s individual circumstances. It may be that, in the vast majority of cases, not more than a few hours or, at most, one or possibly two days would be regarded as reasonable to deal with the particular problem which has arisen. That said, there is no limit to the number of times an employee can be absent from work when unforeseen circumstances arise.

The right to time off work when a dependant is suddenly or unexpectedly taken ill (or is injured or assaulted) is a right, in the first instance, to provide any necessary assistance; and, in the second, to make longer-term (or to restore disrupted) arrangements for care. Employees do not have the right to take time off work in order to provide care for a sick or injured dependant themselves.

Employees wishing to take more than a reasonable amount of time off (i.e. beyond the time needed to provide immediate assistance and make arrangements for longer-term care) may apply to their employers to take that extra time as part of their annual holiday entitlement, negotiate leave of absence without pay, or (in a situation involving a child) exercise their qualified legal right to take a period of unpaid parental leave.

An employer’s operational needs cannot be relevant to a consideration of the amount of time an employee reasonably needs to deal with an emergency involving a dependant. Indeed, an employee might well have to leave their desk or workstation at a moment’s notice to attend to a dependant who is suddenly taken ill (or is injured or assaulted) at a time which the employer could show caused acute, or even insurmountable, operational problems.
But taking into account the employer’s needs as relevant to the overall reasonableness of the amount of time taken would frustrate the clear purpose of the legislation, which is to ensure that employees are permitted time off to deal with such an event, whenever it occurs, without fear of reprisals – so long as they inform their employers of the reasons for their absence and tell their employers how long they expect to be away.

Unless unable to do so until after they have returned to work, employees are duty bound to inform their employers, as soon as is reasonably practicable, of the reasons for their absence (or continued absence) from work and must inform their employers about the expected duration of absence.
A failure to comply with either of these requirements negates an employee’s entitlement to take time off under s.57A. However, absent employees are not obliged to telephone their employers every day to keep them informed of developments, although many would want to do so.

Employers have no statutory right to demand that employees taking time off under s.57A justify their absences by producing documentary evidence (e.g. medical notes, or death certificates). However, there is nothing to prevent employees suspected of abusing their statutory rights volunteering to produce such evidence to avoid disciplinary action or dismissal.

Mrs Qua lost her case on appeal.

Case 2: Mac-Culloch v Moore

The importance of employees informing their employers of the reasons for their absence (or continued) absence from work, and for how long they expect to be absent, was highlighted in Mac-Culloch & Wallis Ltd v Moore, the second case to be heard by the EAT under S.57A.

In this case an employee with less than 12 months’ service, whose father had been injured in a motor accident, took time off work to fly to Ireland to admit him to hospital.

After three or four days, her employers (who suspected that she was taking more time off than was strictly necessary, given that she had brothers and sisters in Ireland) wrote to her instructing her to return to work on a specified date or face dismissal. In the event, the employee ignored her employer’s instructions and remained at her father’s bedside until he died on the day after the expected return date.

As there was no evidence to suggest that she needed to spend more time off work after having made arrangements for her father’s admission to hospital (given that there were other members of the family close by) and she had not informed her employers that her father’s condition had deteriorated and that he was not expected to survive, the EAT held that she had forfeited her rights under s.57A by taking more than a reasonable amount of time off and by neglecting to inform her employers of the reasons for her continued absence from work and for how long she expected to be absent.

Nevertheless the EAT was critical of her employer’s decision to dismiss, and considered that she would have succeeded in an ordinary unfair dismissal case, had she had the necessary length of service.

Case 3: Foster -v- Cartwright Black solicitors

This case was decided at the Employment Appeal Tribunal on 25 June 2004. Mrs Foster claimed automatic unfair dismissal by reason of being dismissed for taking time off under Section 57A. Mrs Foster began her employment on 5 August 2002. In January 2003 she had 12 days paid bereavement leave due to the death of her father.

In May her mother also died and she had five days bereavement leave followed by two weeks sick leave certified by her doctor as bereavement reaction. A sick note recommending a further two weeks’ absence for the same reason was issued. After Mrs Foster sent the sick note she was invited to a meeting and was dismissed. The reasons for her dismissal was her absence record.

She did not qualify for ordinary unfair dismissal as she had not been employed for 12 months.

The question before the Tribunal was whether the time taken off by Mrs Foster after the death of her mother for which she had sick notes from her doctor fell within the scope of Section 57A. The Tribunal looked at the cases of Qua and MacCulloch.

Mrs Foster tried to argue that reasonable time off in consequence of the death of a dependant should not be restricted to making the actual funeral arrangements but should include time to come to terms with the emotions caused by the death of a parent.

The Tribunal therefore considered afresh the background to the Dependant Leave Directive, the preamble of which states “the enclosed framework agreement represents an undertaking ….. to set out minimum requirements on parental leave and time off on grounds of “force majeure” as an important means of reconciling work and family life and promoting equal opportunities and treatment between men and work”.

The UK therefore brought in the legislation to entitle workers to time off from work on the grounds of ‘force majeure’ for urgent family reasons in cases of sickness or accident making the immediate presence of the worker indispensable. Employees were to have time off without fear of victimisation especially dismissal. It was not intended to be a provision to allow employees to have time off to pursue other interests but limited to urgent cases of real need.

In the Qua case it was stated “the statutory right is in our view a right given to all employees who are permitted to take a reasonable amount of time off during working hours in order to deal with a variety of unexpected or sudden events affecting their dependants as defined and in order to make necessary longer term arrangements for their care.”

Although the decisions in Qua and MacCulloch concerned different provisions of Section 57, the basic approach of entitlement to time off to take action which is necessary to deal with an emergency apply throughout. The section, does not introduce the right to compassionate leave as a result of bereavement. Mrs Foster did not succeed because she had less than 12 months’ continuous service and was not dismissed for an inadmissible reason. She did not have the protection of s.57A.

Given that many employees may be less than familiar with their statutory rights under Section 57A of the Act, employers who have not developed their own in-house procedures for dealing with applications for dependant leave would be well advised to consider remedying the situation.

In summary: