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Dependency leave is not just for emergencies
The Appeal Tribunal has recently clarified that an employee’s right to time of to care for dependants is not limited to emergency situations.
The law gives all employees the right to take a reasonable amount of (unpaid) time off to “take action which is necessary … because of unexpected disruption or termination of arrangements for the care of a dependant.” Disciplining an employee for taking leave in these circumstances is unlawful.
This has often been described as emergency leave – available when some emergency requires the employee to care for his/her dependant, such as when a child is taken ill and cannot attend school or childcare. The Appeal Tribunal has however pointed out that the word emergency does not appear in the legislation. The need has to be unexpected and it must be necessary to take the time off.
They were considering the case of Mrs Harrison, who worked for the Royal Bank of Scotland and sent her child to a childminder. On 8 December, she found out that her childminder was not available on 22 December, when she was due to work. She spent five days trying to find alternative care before requesting to take holiday leave for that day. On 20 December, she was told she could not have the day’s holiday. Having no-one else to care for her child, she did not come to work on 22 December. She was given a verbal warning for unauthorised absence.
The Appeal Tribunal found that this was unlawful because Mrs Harrison had the right to dependency leave. There was an unexpected disruption to her childcare arrangements and it was necessary for her to take the time off because she had no other childcare.
This case does not give carte blanche to employees to take time off whenever their usual childcare is not available. They will still be expected to look into other arrangements to show that taking time off is necessary. The amount of notice they have of the disruption will obviously be relevant to how necessary it is to take leave, depending on what steps have been taken to look for alternatives.
Employers should however be careful before disciplining employees for unauthorised absence. Employees should be asked to provide an explanation for the absence. If the dependency leave rules apply, no disciplinary action should be taken.
December 5, 2008
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