Time Off for Dependants – Definition of ‘Unexpected’

Under Section 57A (1)(d) of the Employment Rights Act 1996 (ERA), all employees are entitled to take a reasonable amount of unpaid time off work in order to take action that is necessary because of the unexpected disruption or termination of arrangements for the care of dependants and not to be dismissed or victimised for doing so.

In Royal Bank of Scotland (RBS) v Harrison, the Employment Appeal Tribunal (EAT) has considered the meaning of the words ‘unexpected’ and ‘necessary’ in this context.

On 8 December 2006, Mrs Harrison was unexpectedly informed by her regular childminder that on 22 December she would be unable to look after the Harrison’s two children. Over the following days, Mrs Harrison tried to make alternative arrangements but was unsuccessful. Her husband was unable to help out as his sole employee was away on the date in question.

On 13 December, Mrs Harrison asked RBS if she could take 22 December off work as parental leave under ERA Section 57A (1)(d). On 20 December she was refused permission and told that if she did take the time off, it would be treated as unauthorised absence. Mrs Harrison took the day off anyway and was given a verbal warning lasting 6 months.

Mrs Harrison sought a declaration from the Employment Tribunal (ET) that she had suffered a detriment because she had exercised her statutory right to time off work to look after her dependants. The issue before the ET was whether it was necessary for her to take the time off because of the unexpected disruption of the care arrangements for her children. It judged that the unavailability of a child minder was unexpected. Mrs Harrison had pursued all avenues she could to resolve her problem and had informed her employer of the situation as soon as was reasonably practicable. In its view, she was entitled to time off and her claim succeeded.

RBS appealed the decision. It sought to demonstrate that the correct construction of ERA Section 57A (1)(d) was that the right to time off work to care for a dependant only applies to situations that arise suddenly or in an emergency and that the ET had made an error of law.

The EAT disagreed. In its view, the word ‘unexpected’ does not involve a time element and when applied to the facts of each case should not be supplemented by adding the words ‘sudden’ or ‘in an emergency’ to Section 57A (1)(d). The passage of time between the employee finding out about the need to make alternative arrangements and the taking of time off should be considered when determining whether time off work was necessary and this will depend on the particular facts in each case. If an employee has not taken appropriate steps to make alternative arrangements and has had sufficient time to do so, the ET is unlikely to find that is was necessary in the circumstances.

Aston Bond says, "Employment policies should be revised in the light of this judgment. An employee’s entitlement to take time off to care for dependants is not confined to emergencies or to the last minute unavailability of childcare. We can advise you on your specific circumstances."

Ms Bell, Solicitor for RBS, contested that Parliament did not intend to make provisions wider than the minimum required by the European Community Parental Leave Directive 96/34 and pointed out that this approach was consistent with guidance issued by the Department for Business, Enterprise and Regulatory Reform.

The guidance contained the following:

What is time off for dependants?
This is a right allowing employees to take a reasonable amount of time off work to deal with certain unexpected or sudden emergencies and to make any necessary longer term arrangements. The circumstances under which time off can be taken under this right are listed in Section 3 of this guidance. The emergency must involve a dependant of the employee. A definition of a dependant can be found in Section 4. An employee who uses this right is protected against unfair dismissal or victimisation, and;

Can an employee take time off if the childminder fails to turn up?
Time off can be taken under this right in the unexpected absence of the normal carer of the dependant; for example, a childminder or nurse may fail to turn up as arranged.

This link has now been removed although guidance for employers can still be found on the business link website and at http://www.berr.gov.uk/files/file41731.pdf.

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