- 16 minute read
- Last updated: 28th December 2019
The following guide for employers looks at the rules relating to dependency leave, from who counts as a dependant to whether or not you are entitled to dismiss an employee for taking, or trying to take, dependency leave.
This article covers:
- What is dependency leave?
- Who are ‘dependants’?
- What is an emergency in the context of dependency leave?
- How long is dependency leave?
- Is dependency leave paid?
- Can employers refuse dependency leave?
- Dismissal for taking dependency leave
By law, the employee has relatively limited statutory rights when it comes to dependency leave, although establishing exactly when and to what extent these rights arise can be extremely difficult for employers.
Broadly speaking, under the Employment Rights Act (ERA) 1996, employees are entitled to take a “reasonable amount of time” off during their working hours for dependants including, for example, to care for a dependant who suddenly falls ill or even to make arrangements for the provision of care for a sick dependant.
In other words, employees have the right to time off to deal with unexpected or emergency situations, typically involving a loved one. This is a right that arises from day one of their employment, without any requirement for a minimum length of service and applies to all employees.
Further, given that the nature of dependency leave is to deal with unforeseen circumstances, employees are not required to give advance notice of their absence. That said, they are required to inform their employer “as soon as reasonably practicable” of the reason for their absence and when they expect to be able to return to work. This must be done either verbally or in writing.
Under the 1996 Act, a dependant is defined as a spouse, civil partner, child or parent. It also includes “a person who lives in the same household as the employee, otherwise than by reason of being his or her employee, tenant, lodger or boarder”, such as a live-in partner. However, the Act specifically excludes from the definition of a dependant any person that may be living in the employee’s household with whom s/he has no close or intimate ties.
That said, in the context of certain emergencies, the definition of a “dependant” is extended to include any individual who reasonably relies on the employee for assistance, namely when that person falls ill, is injured or assaulted, or to make arrangements for the provision of care in the event of illness or injury.
In other words, the statutory right to dependency leave includes a situation involving someone who depends on the employee for care. Further, this is not necessarily limited to someone living in the employee’s household, but could include, for example, an elderly or disabled neighbour.
The ERA 1996 provides for various different emergency scenarios in which an employee will be entitled to take dependency leave. These are as follows:
- To provide assistance on an occasion when 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
- 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 which involves a child of the employee and which occurs unexpectedly in a period during which an educational establishment that the child attends is responsible for him or her.
As such, an unexpected or emergency situation falling within the statutory definition of dependency leave under the ERA 1996 can include the following, although this list is by no means exhaustive:
- Where a dependant is suddenly taken into hospital or goes into labour
- Where a dependant’s care arrangements have broken down, for example, a child-minder doesn’t turn up or the child’s nursery closes unexpectedly
- Where the employee’s child has been involved in an incident at school, for example, they have got into a fight or have been suspended
- Where a dependant has an existing illness that has suddenly worsened or that person passes away.
The statutory provisions do not, however, cover a situation that an employee knows about in advance, for example, taking a child to a hospital appointment, nor does it allow for ongoing care of a sick dependant or for time off for an employee to manage the emotional effects of bereavement of a loved one.
Further, in each scenario set out above, the statutory requirement is only that the employee is entitled to time off in order to take action that is necessary in these circumstances. However, what constitutes “necessary” is fact-specific.
In theory, this means that where another responsible person is available to deal with the emergency situation involving the dependant, such as a child’s other parent, this may potentially negate the employee’s entitlement to dependency leave. In practice, however, an employer may be hard pressed to prove this.
Perhaps one of the most difficult issues when determining an employee’s right to dependency leave is the amount of time that an employee can take from work. Under the 1996 Act the entitlement is limited to a “reasonable amount of time”, although what constitutes “reasonable” is not statutorily defined.
In most cases, one or two days will be sufficient to deal with an emergency situation, for example, allowing the employee to put in place alternative care arrangements for a dependant, although much will depend on the individual circumstances involved, not least the nature of the emergency. By way of example, in the context of compassionate or bereavement leave, a period of two to five working days would typically be considered reasonable.
To avoid confusion or complaint as to how long will be allowed, it is good practice to have a policy in place that outlines employees’ entitlement to dependency leave, setting out how much time can be taken by an employee in certain circumstances.
It is important to note here that any contractual right to dependency leave cannot be less than the employee’s statutory entitlement although, as already indicated, the extent of this entitlement is far from clear.
In the absence of any documented policy, you should always exercise your discretion on a case-by-case basis, being both reasonable and consistent in line with previous custom and practice. In the event that you exercise your discretion in relation to the length of any dependency leave either more or less favourably for different employees, you risk your decision-making being open to challenge.
As an employer, there is no statutory obligation under the 1996 Act to pay an employee for time taken off work for dependency leave. That said, it is again often good practice to make financial provision within an individual’s contract of employment for short periods of leave, not least to earn goodwill with your staff.
Where an employee is looking to take an extended period of time away off work to deal with ongoing personal issues and commitments, for example, caring for a terminally-ill dependant or supporting a bereaved child, they can use their entitlement to paid annual leave.
You may also want to refer an employee to any alternative time-off policy, such as parental leave, or even consider some form of flexible or part-time working, either on a temporary or permanent basis.
It is generally in the best interests of both the employee and business to ensure that sufficient time is given to deal with ongoing issues, or to adopt some form of flexible approach, otherwise run the risk of resignation or the employee otherwise taking a leave of absence, for example, through stress-related sickness.
By law, where an emergency situation falls squarely within the provisions of the ERA 1996, you are not entitled to refuse dependency leave, either on the basis of business reasons or otherwise, not even if there is a critical situation at work or the timing of the employee’s absence would be exceptionally inconvenient.
However, the law relating to dependency leave, including when an employee is entitled to take time off work and for what length of time, is not clearly defined, such that even a decision to reasonably refuse a request may be open to challenge.
In the event that you have a clearly defined dependency leave policy, and you have adhered to the terms of this policy with consistency and fairness, any complaint to an employment tribunal that an employee has been unreasonably refused permission to take time off is less likely to be successful, although much will depend upon the reasonableness of these provisions in the first place.
It is also important to consider the potential long-term effects of refusing any request for dependency leave, both on the employee and your business, not least given the likely stress that this will place on any individual who is effectively prevented from dealing with an emergency situation at home.
For some employees they may feel forced to resign, resulting in the loss of a potentially key member of staff, not to mention the possibility of you facing a claim for constructive dismissal. Equally, for the employee who remains in your employment, any refusal to grant their request is likely to have a negative impact on their performance and productivity at work.
In some circumstances, employee stress may result in sickness-related absence, for which the employee benefits from much greater statutory protection, such as the right to statutory sick pay. Further, where any stress-related illness becomes long-term, and the employee’s symptoms affect their ability to undertake day-to-day activities, this may amount to a disability under the Equality Act 2010.
In these circumstances, the employee would have the right to reasonable adjustments to their working environment to remove or minimise the impact of their impairment in the workplace, for example, a phased return following long-term sick leave, or revised hours and responsibilities on their return.
In circumstances where an employee has reasonably requested or rightfully taken time off for dependency leave, it is unlawful for an employer to subject that employee to any detriment because of this, for example, by refusing them training or promotion, demoting the employee, selecting them for redundancy or even dismissing them.
If an employee feels they are being treated less favourably or have been unfairly dismissed, this may again result in a complaint to the employment tribunal.
That said, confusion can often arise in this context in relation to the statutory notification requirements under the ERA 1996. The statutory right to dependency leave does not arise unless your employee informs you of the reason for their absence “as soon as reasonably practicable”, including for how long they expect to be off work. However, there is one exception to this rule, namely, where the employee is unable to comply with the statutory duty to notify their employer of the reason for their absence until after they have returned to work.
Given the lack of statutory definition as to the basis upon which it can be argued that an employee was unable to comply with the notification requirements, it makes it extremely difficult for an employer to decide whether the right to dependency leave has arisen and whether or not dismissal can be justified.
Accordingly, every dependency leave situation should be dealt with giving full consideration to all of the facts and individual circumstances and having regard to any explanation offered by the employee for their absence, as well as any failure to provide notification of this. Specialist employment law advice should be sought before pursuing disciplinary action against an employee in such difficult circumstances.
As an employer, emergency situations for employees require careful handling. While it will be important to be supportive and understanding of the difficulties facing your employee, it will also be important to be clear on the terms of the dependents leave and any flexibility you are able to provide, whether the circumstances result in a quick return to work or require a longer-term and supportive approach.
DavidsonMorris are experienced employment law specialists offering guidance and support to employers with all aspects of workforce management. We have particular expertise in advising on dependency leave and taking a fair and legally compliant approach to supporting employees while minimising operational impact and disruption.
For advice about any aspect of employment law and reducing legal risk for your business, contact us.