Its a right that is available to employees from their first day at work, allowing them reasonable time off to take whatever action is necessary. This may include
either organising help or actually assisting themselves when a dependant falls ill, has a baby, is injured or assaulted. Other circumstances include the unexpected disruption of care arrangements, a dependants death or the inevitable incidents that occur at school with children. To exercise the right, staff must explain their reasons for absence as soon as they can and, if possible, to say how long they will be away.
What employers have to decide is where the line should be drawn between an emergency and that which suggests that different leave arrangements could be a good idea. Just how many emergencies can one employee have?
A case that recently appeared before the Employment Appeal Tribunal provides a good example of the difficulties employers may face. This concerned a secretary who worked for a firm of solicitors. As a single mother, during her 10-month stint at the firm she was away for 17 days due to her small sons medical problems. For a few of those days she was away from work for only an hour or two. However, there were five blocks of time of two or more days absence.
The case provides answers to a number of questions. First, does the statutory right enable employees to take time off beyond the reasonable amount necessary to let them to deal with the immediate crisis? The answer was a definite no longer-term care for a child can be covered by parental leave entitlement, although one years qualifying service is needed for this.
On the question of what necessary action means, the tribunal thought that factors such as the nature of the
incident, the relationship between the employee and the dependant and the extent to which anyone else is available to help out might be relevant.
In addressing what is regarded as a reasonable time away, the tribunal concluded that in the vast majority of cases it should be no more than a few hours, or at most one or possibly two days. However, maximum periods of time could not be specified this would depend on the individual circumstances in each case.
Can the employer take into account the number
and length of previous absences, as well as when they occurred, in order to decide whether the time
taken off or needed is reasonable and necessary?
There is no statutory limit to the number of times an employee can exercise the right, the tribunal decided. However, no employee is entitled to unlimited amounts of time off work, even if they comply with the notice requirements and take a reasonable amount of time on each occasion.
Whether to say yes or no to a request for time off has to be decided on the facts of each case. For example, a parent who had been permitted time off to deal with a child who had chicken pox might subsequently be allowed longer if there were unexpected complications needing immediate action.
Other points that emerged from the appeal tribunal case is that disruption or inconvenience caused by the employees absence is irrelevant since the right involves dealing with the unexpected. There is also no need for staff to
report to employers on a daily basis while taking time off, although many employees might do this as a matter
of course.
The legal secretarys case was sent for a fresh hearing since, in the appeal tribunals view, the statutory right had not been considered correctly in the first place; for example, by asking whether the employers conduct had been reasonable overall, rather than examining each period of absence separately.
For employers, the case only goes to show how important it is to understand the purpose of the statutory provision as well as what it says. Employers must learn to expect the unexpected.
janet.gaymer@haynet.com
Janet Gaymer is head of employment law at Simmons & Simmons
