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Time off to care for dependant

Posted on 16th February 2009
Case law

Employees can take a reasonable amount of time off work in order to take action which is necessary in relation to their dependants.

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Simon Quantrill Simon
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An employee only has to suffer an unexpected interruption to the care arrangements

Royal Bank of Scotland plc v Harrison


Mrs Harrison was the mother of two children, aged five and 15 months. She worked part-time at the Royal Bank of Scotland. A childminder looked after her children while she was at work and there was no one else who was in a position to be able to help look after them when she was working. On 8 December 2006, Mrs Harrison's childminder told her that she would not be able to look after her children on 22 December 2006. Mrs Harrison tried to arrange alternative childcare but was unsuccessful.

On 13 December 2006 she asked her team leader whether she could take 22 December 2006 off. It was not until 20 December 2006 that her employer informed her that it could not cover for her and that if she took the day off it would be considered an unauthorised absence and she would be disciplined. Having no other choice Mrs Harrison took the day off and as a result was given a verbal warning by her employer. She appealed against the warning but her appeal was not upheld.

Mrs Harrison brought a claim against her employer that she was subjected to a detriment when she was issued with the verbal warning. The employment tribunal upheld her claim and the Royal Bank of Scotland appealed the decision.

The decision

The EAT upheld the tribunal's decision. The provisions apply to all disruptions in care arrangements which cannot be planned for. The Royal Bank of Scotland argued that the tribunal should have taken into account the length of time which passed between Mrs Harrison becoming aware that her childcare arrangements would be disrupted (on 8 December 2006) and the day when they actually were disrupted (22 December 2006). It was the Bank's position that the provisions only apply if the disruption is sudden. The EAT dismissed this argument holding that the period of time between knowing of the disruption and it taking place did not have an impact on the issue of whether it was 'unexpected'. The EAT did observe that this point was relevant to the issue of whether it was 'necessary' for an employee to take time off, as the more notice an employee has of a disruption the more time they have to try to make alternative arrangements. Other factors which could help to show whether time off work is necessary are 'the nature of the disruption, the availability of alternatives, finance and time'.

The EAT concluded that there was no justification for the word "sudden" to be inserted. An employee only has to suffer an unexpected interruption to the care arrangements.

In practice

The lesson here is that employers must consider an employee's request for time off in respect of care for dependants carefully. The EAT emphasised the importance of considering whether time off is necessary but this, by its nature, leads to decisions varying on a case-by-case basis. Employers should therefore proceed with caution and take legal advice if in doubt.

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