In the recent case of RBS v Harrison, the Employment Appeal Tribunal ruled on the circumstances in which an unexpected disruption of arrangements for a dependant's care entitles an employee to take reasonable time off work under the Dependant Leave Regulations. Richard White considers this case further.
RBS v Harrison: The facts
The employee, who worked three days a week, had her two children cared for by a childminder during her working hours. The main facts of the case were as follows:
- On 8 December, she was told that her childminder could not care for the children on 22 December
- By 12 December, the employee failed to find alternative childcare
- On 13 December she advised her employer of the situation and asked to take 22 December as approved leave
- The employer stated she could not take the time off, as cover for her absence could not be provided
- The employee was advised that if she did not come into work on the 22 December, her absence would be treated as unauthorised
- The employee did not come into work on 22 December and was given a verbal warning for having been on unauthorised absence
- The employee issued tribunal proceedings alleging that she had been subjected to a detriment, in the form of the disciplinary warning, for having exercised her right to time off.
In this case the issue was whether the employee was entitled to take the time off work on the grounds of necessity due to "unexpected disruption or termination of arrangements for the care of a dependant".
The employer argued that the statutory provisions only related to situations where a childminder did not arrive on a day when service was expected.
Ruling in favour of the employee, the Employment Appeal Tribunal (EAT) stated, although the statutory guidance for Dependant Leave Regulations uses the example of a childminder or nurse failing to arrive as arranged, it does not suggest this is the only example where the statutory provision applies.
The guidance does not suggest that if a period of time passes between the advised date of the unexpected disruption and the actual date of disruption, that the disruption is not unexpected. The EAT held that the word 'unexpected' is an ordinary word to be construed according to its natural meaning and does not involve a time element.
The EAT suggested that, in considering whether an employee's action or proposed course of action was 'necessary', a tribunal could take all relevant circumstances, (including considerations of urgency and time) into account.
When deciding whether an employee was entitled to take time off, the amount of time between the employee learning of the risk of disruption and that risk becoming fact should be considered by the tribunal as part of the question of necessity.
The longer the time between learning of the risk of disruption and the risk becoming fact, the more time the employee has to explore alternative arrangements. If an employee has sufficient time, but does not take appropriate steps to make alternative arrangements, a tribunal is unlikely to find that it was necessary for them to take the time off.
However, if the time between learning of the risk and the risk becoming fact is very short, it will be easier for the employee to establish that it was necessary for them to do so.
A commonly-held view since the introduction of the Dependants Leave Regulations has been that employees are only entitled to take reasonable time off in the event of an emergency. However, RBS v Harrison shows that this is not the case. The key questions are whether there has been an 'unexpected' disruption of care arrangements, and whether this has rendered it 'necessary' for the employee to take a reasonable amount of time off. In the RBS case, the EAT was prepared to rule that even with two weeks notice of the disruption to care arrangements, it was still an unexpected disruption which made it necessary for the employee to take time off.
Employers need to be careful when dealing with requests from employees for time off to care for dependants. The individual circumstances of the case should always be considered so that if the employer decides to reject a request, it has good grounds for doing so. It is worth noting that the statutory right to time off to care for dependants is unpaid, unless the employer chooses to enhance the statutory scheme.
For further advice on this topic, please contact Richard White, specialist employment solicitor at Withy King, on 01865 792 300 or email [email protected]