Since 1999, employees have had the right to take a reasonable amount of time off work to take necessary action to deal with particular situations affecting dependants and to make any necessary long-term arrangements. The Employment Rights Act 1996 (ERA 1996) provides that an employee is entitled to take reasonable time off work where it is necessary:
- to provide assistance if a dependant falls ill, gives birth, is injured or assaulted;
- to make longer-term care arrangements for the provision of care for a dependant who is ill or injured;
- in consequence of the death of a dependant;
- to deal with the unexpected disruption, termination or breakdown of arrangements for the care of a dependant; or
- to deal with an unexpected incident which involves the employee's child during school hours.
A dependant can include a spouse, civil partner, child or parent of the employee, and the definition can be wider in particular circumstances. The right to time off only applies if the employee tells the employer as soon as reasonably practicable, both the reason for their absence and how long they expect to be away.
An employee who is refused permission to take time off, or who is subjected to a detriment for taking it, can complain to an employment tribunal, which can make a declaration or award such compensation as it considers just and equitable. An employee who is dismissed for the reason that they took take time off in accordance with their right can claim automatic unfair dismissal.
Until recently, there had been little case law on the right to time off for dependants, though the Employment Appeal Tribunal (EAT) has previously considered the issue of what might be a 'reasonable' amount of time off work. The EAT has, however, recently considered when it is necessary for an employee to take time off to deal with the unexpected disruption, termination or breakdown of arrangements for the care of a dependant in Royal Bank of Scotland Plc v Harrison.
Mrs Harrison was employed by RBS as a home insurance claims adviser. She worked three days per week, Wednesday to Friday. She has two young children, who were aged 5 and 15 months at the date of the employment tribunal hearing. When she was at work, the children were looked after by a childminder. Her husband worked full-time and had a shop; he had one employee. There were no grandparents to provide care for the children.
On 8 December 2006, Harrison was informed by her regular childminder that she would not be available on 22 December. Over the following days, Harrison tried to find a replacement carer by contacting her family and other childminders whose services she had previously used. Her husband could not leave the shop because his sole employee was away. By 12 December, Mrs Harrison had used all her contacts but not found a substitute for her regular childminder. She therefore told her team leader about the problem when she went to work on 13 December and asked to have 22 December off. It was not suggested then that she would not be able to have the time off – she thought the only outstanding issue was whether it would be paid.
On 20 December, however, she was told: RBS could not cover her on 22 December; she could not take that day off; and if she did take it, this would be treated as unauthorised absence.
Harrison stayed at home on 22 December to look after her children and was subsequently given a verbal warning for this. Her appeal against that warning failed. She complained to an employment tribunal, which upheld her claim. RBS appealed to the EAT.
