It’s an emergency! A guide to ‘time off for dependants’

No one wants to be on the receiving end of an emergency phone call at the best of times, but what if an employee gets that call in the middle of their working day? Are they entitled to drop everything and run?

Under section 57A of the Employment Rights Act, the answer is usually yes.

What is the right?

Section 57A sets out a right to ‘time off for dependants’.

This is a right to take a reasonable amount of unpaid time off, during the employee’s working hours, in order to take action which is necessary:

• to provide assistance where a dependant falls ill, gives birth or is injured or assaulted;
• to make arrangements for the provision of care for a dependant who is ill or injured (this includes mental illness or injury);
• in consequence of the death of a dependant;
• because of unexpected disruption or termination of arrangements for the care of a dependant; or
• to deal with an incident which involves a child of the employee, and which occurs unexpectedly while an educational establishment is responsible for the child

As noted, there is no right for time off under this section to be paid, but employers can agree to pay for such time off if they wish.

Who is entitled?

The right only applies to employees, but it is a ‘day one’ right and is not subject to any qualifying period of employment.

Who is a ‘dependant’?

A dependant is typically one of four people:

• an employee’s spouse/civil partner;
• (ii) child;
• (iii) parent; or
• (iv) a person who lives in the same household as the employee (but is not a tenant, lodger, boarder or someone employed by the employee). However, in circumstances (a), (b) and (d) above, the definition of dependant is expanded to be an individual who ‘reasonably relies’ on the employee.

Does the employee have to do anything?

To make use of the right, the employee must inform the employer for the reason for their absence as soon as reasonably practicable and, except where it is not possible to do so until after the employee has returned to work, must tell their employer how long they expect to be absent for.

If an employee fails to comply with these notice requirements, the employer can treat any leave taken in the same way as they would treat any other unauthorised absence.

What are the limits to the right and can an employer refuse?

The right is to ‘reasonable’ and ‘necessary’ time off. What is reasonable and necessary will depend on the circumstances. The right is intended to allow the employee to deal with the immediate aftermath of an unexpected or emergency situation, and plan for ongoing care/other arrangements if required.

There are limited circumstances where an employer can refuse to allow an employee to take time off for dependants – where (i) it is not necessary for the employee to take the time off; or (ii) the amount of time off requested is unreasonable.

For example, if an employee’s child was sent home from school unexpectedly, this would fall under (e) above, and that employee would be entitled to reasonable time off to arrange for care of their child.

If, however, the employee’s partner was called first and had already made arrangements for their child, it may not be necessary for the employee to also take time off. Similarly, if the employee used time off for dependants to deal with the immediate situation on the day, but then wanted to continue to care for their child at home for the rest of the week, an employer may be able to request that they use another type of leave (egannual leave) to do so, dependent on the circumstances

However, it should be noted that there is no statutory limit on the number of times an employee can exercise this right. The Employment Appeal Tribunal has held that an employer is entitled to take account of previous use of the right in determining what was reasonable on subsequent occasions, but again this ultimately depends on whether the requests were reasonable and necessary in the circumstances.

It also does not matter if the need arises at a particularly busy time for the employer. Inconvenience or disruption to their business operations is not a relevant consideration for exercise of this right. An employee is also not required to produce any kind of evidence to support the time off taken. If an employer suspects that an employee may be being dishonest about their absence, this should be dealt with according to their normal disciplinary procedures.

If you need any help with navigating time off for dependants, or any other kind of leave, please get in touch with our specialist employment team.