Dependent care leave: necessity

Mark Minns, 3 March 2009

For some years, a commitment to family-friendly legal policies has shaped the Government's attitude to employment law. One key policy that is indicative of this attitude is the right that employees have to request time off to deal with emergencies.

For almost ten years employees have had the right to take a reasonable amount of time off work to take necessary action in certain situations that impact on their dependants. This applies where action is necessary in certain particular circumstances.

Those circumstances are:

> to provide assistance when a dependant falls ill, gives birth, is injured or is assaulted;
> to make arrangements for the provision of care for a dependant who is ill or injured;
> in consequence of the death of a dependant;
> because of the unexpected disruption or termination of arrangements for the care of a dependant; or
> to deal with an incident that involves the employee's child which occurs unexpectedly in a period during which an educational establishment which the child attends is responsible for him.

A dependant is defined as might be expected - a spouse, child or parent of the employee, or a person who lives in the same household as the employee or any person who reasonably relies on the employee to assist him if ill or injured or to provide care for him.

To exercise the right to dependant care leave, an employee must:

> inform the employer that he or she will be absent;
> inform the employer of that fact as soon as reasonably practicable; and
> inform the employer how long the period of absence is likely to last.

The case of RBS plc v Harrison has recently examined the issue of what constitutes action which is necessary and what is meant by unexpected.

Background

Mrs Harrison worked for RBS on a part-time basis. Whilst she was at work Mrs Harrison's children were looked after by a child minder. Mrs Harrison was told by her child minder (on 8th December 2008) that she would be unavailable to work on 22nd December. Mrs Harrison tried to find an alternate child minder, but despite her best efforts, she failed to do so. As such, she informed RBS that she would have to take 22nd December off work in order that she could stay at home to look after her children.

However, RBS refused to allow Mrs Harrison to take the time off, and when she did so was issued with a verbal warning.

Legal proceedings

Mrs Harrison issued a claim in the Employment Tribunal that she had been subjected to a detriment as a result of her verbal warning. She took the view that she had no choice other than to take the time off.

RBS argued that the disruption to the childcare arrangements had not been 'unexpected' on the basis that 'unexpected' should apply where a situation arose suddenly, or in an emergency.
However, the Employment Appeals Tribunal disagreed and held that 'unexpected' does not necessarily involve a time element. It also held that an event is only 'unexpected' when an employee hears of it, as was the case here on 8th December 2006.

In terms of whether it was 'necessary' for Mrs Harrison to take the time off, it was relevant to consider how much warning that Mrs Harrison had of the unavailability of her child minder and the steps that were taken in that period. Although Mrs Harrison had a reasonable period of notice of the unavailability of her child minder, she had taken all reasonable steps to find alternate cover.

As a result, the Employment Appeals Tribunal upheld the original finding of the Employment Tribunal that she had been subjected to a detriment in the issuing of a verbal warning.