We have an employee who has taken several weeks off recently due to a breakdown in her childcare arrangements. Her mother normally looks after her baby, but her mother was ill for a week so the employee took a week off. Then just as the employee was due to return to work, her mother was assaulted and has been unable to look after the baby since. The employee has now been off work for several weeks – surely she must have been able to sort out alternative childcare by now? What should we do?
All employees (regardless of length of service) have a statutory right to take unpaid leave to deal with unforeseen issues for their dependants (such as where care arrangements are disrupted). Some employers offer a certain amount of paid leave, but there is no legal obligation to do so.
The statutory right is limited to where the time off is ‘necessary’ and to an amount of time that is ‘reasonable’.
In terms of whether the time off is ‘necessary’, she would have been able to show this (at least initially) if her mother is usually the childcare provider and was unable to look after her child – firstly through illness and then due to being assaulted. Assuming she is telling the truth, then it may be an unfortunate coincidence that these two events have prevented her mother from looking after her child for several weeks.
The next point is whether the amount of time off is ‘reasonable’. The idea is that it is time off to make arrangements for care, not to provide care herself – but in practice it can be difficult to find alternative childcare at short notice, particularly for a short period of time.
In the case of Royal Bank of Scotland v Harrison (2008) an employee had found out two weeks beforehand that her childminder would be unavailable for one day. Despite trying, she was not able to find an alternative childcare arrangement, so had to take the day off. She was disciplined for unauthorised absence but the Tribunal confirmed that the time off had been reasonable in the circumstances, and this was upheld by the Employment Appeal Tribunal. The employee had unlawfully been subjected to a detriment (the disciplinary action) for exercising her statutory right to take leave.
In this situation the best approach would be to arrange a meeting with the employee about the time off, the reasons for it and what she has been doing to find alternative childcare. For example, could the baby’s father or another family member have assisted? What enquiries did she make about other forms of childcare?
If she hasn’t been doing enough (which of course depends on her answers) then employers may be able to argue that it is unauthorised absence and therefore a disciplinary matter. However, an employer should be wary of taking that approach unless there are reasonable grounds for it.
Although in this case the employee’s dependant is a baby, the same principles apply if a member of staff has an adult dependent on them. It can be a good idea to have a policy in place to let staff know what is expected of them if they need to take this form of leave, and to try and make your organisation’s position clear. However, because the leave is for a ‘reasonable’ period, there cannot be hard and fast rules on the time allowed, because it will depend on the individual circumstances.
Do you have any queries on time off for dependants or other family friendly rights? Please call us on 01243 836840 for a no obligation chat or email us at [email protected].