It’s a fact of life that employees may need to take time off work at some point to deal with an emergency. This could be time off work for family reasons or time off for medical reasons, or to attend a medical appointment for themselves or accompanying a dependant.
Below we look at what the law says about last minute leave, how emergency absences should be handled by HR, from how much time an employee should be permitted to take to whether they are entitled to be paid for this period.
Employees rights to take emergency time off work
The law relating to time off work for emergencies is set out under the Employment Rights Act (ERA) 1996. Under the ERA, an employee is permitted to take a reasonable amount of time off during their working hours so that they may take action that is necessary:
- To help when a dependant becomes ill, is injured or assaulted, or gives birth
- To put in place care arrangements for a dependant who is ill or injured
- Where a dependant passes away
- Where care arrangements for a dependant are unexpectedly disrupted or terminated
- Where their child is involved in an incident at school which occurs unexpectedly during school hours.
The law therefore covers a number of unforeseen or emergency scenarios involving a dependant, including compassionate leave where an employee has been recently bereaved, as well as caring for a sick child or adult dependant, or making arrangements for their care.
This could cover, for example, where a dependant’s care arrangements have broken down, such as a child-minder cancelling at short notice or the child’s nursery closing unexpectedly. The statutory provisions also allow an employee to deal with an incident involving their child at school, for example, where a child has been involved in a serious disciplinary matter.
The right to take time off work in any one of these emergency scenarios is a right that arises from day one of employment, without any requirement for a minimum length of service.
Giving notice for emergency time off work
The right to take time off work in emergencies is not automatic. Even though an employee is not required to provide you with advance notice, as the very nature of an emergency situation makes it unexpected, the right to take dependency leave will only trigger if the employee informs you of the reason for their absence ‘as soon as reasonably practicable’.
The ERA also requires an employee to tell you how long they expect to be absent from work.
If it has not been possible for the employee to notify you of the reason for their absence until after they have returned to work, the absence can still be authorised retrospectively. There is no guidance setting out the circumstances in which an employee will be unable to comply with the statutory notice requirements during their absence, so you may need to keep an open mind, although in most cases the employee ought to be able to notify you within a day or so.
Who is classed as a dependant?
A ‘dependant’ is defined under the ERA as either a spouse, a civil partner, a child or a parent. A dependant can also include a person who lives in the same household as the employee, including a cohabiting and same-sex partner, as well as other relatives or unrelated people living as family in the employee’s home. It does not include anyone in a commercial relationship with the employee, such as tenants, lodgers, boarders or a live-in nanny.
That said, even though the provisions of the ERA exclude from the definition of a dependant anyone that may be living in the employee’s household that they have no close or intimate ties with, if a live-in nanny became incapacitated or suddenly passed away, an employee would still be entitled to take time off to deal with the unexpected disruption or termination of their childcare arrangements. This could also encompass the illness, injury or death of any individual not living in the same household but responsible for the care of a dependant.
In the context of certain emergencies, the definition of a dependent additionally extends to anyone the employee cares for, or is otherwise responsible for arranging their care. This is not limited to someone living in the employee’s household, but could include, for example, a disabled or elderly family member, friend or even a neighbour.
What is a reasonable amount of time off work?
The length of time that an employee is permitted to take off work in emergencies can be one of the most difficult issues when determining their right to dependency leave. The ERA only provides that an employee is permitted to take ‘a reasonable amount of time’ off work to take any action that is necessary to deal with the emergency in question.
In the absence of any statutory definition as to what is ‘reasonable’, much will depend on the nature of the emergency. For example, the length of time to arrange the provision of care for a dependant who is ill or injured could be limited to just one day, whilst a period of at least one week would be considered more appropriate following the death of a close relative.
In the context of bereavement, it is important to bear in mind that employees have a separate statutory right to two weeks off work if a child under the age of 18 dies or is stillborn after 24 weeks of pregnancy. This is called parental bereavement leave.
Is emergency time off work paid?
Under the ERA, employees are not statutorily entitled to paid time off work in emergencies, although they will not be required to make up the time as agreed with their employer.
The exception to the unpaid leave rule is in the case of parental bereavement leave, where employees who have a 26 week qualifying service period and earn at least £120 per week before tax will be entitled to £151.97 per week or 90% of their average weekly earnings, whichever is lower.
Otherwise, many employers will often allow an employee to take any paid annual leave entitlement in emergencies or make contractual provision for short periods of paid emergency leave. However, unless you are prepared to allow an employee to use their annual leave on short notice, or the employee’s contract of employment or any relevant workplace policy make express provision for paid leave, the employee will not be entitled to any payment.
Time off for medical appointments
The statutory provisions under the ERA will cover an employee for time off to accompany a dependant to an urgent medical appointment when that dependant becomes ill, or is injured or assaulted. It will not cover a situation that an employee knows about in advance, for example, taking a child to a pre-arranged hospital appointment, although the employee may be entitled to take unpaid parental leave instead, subject to providing you with advance notice.
In respect of time off work for an employee to attend their own pre-arranged medical appointments, there is again no legal requirement to allow this during working hours, although many employers will make contractual provision to attend a limited number of doctors and dentists appointments or ask the employee to make up the time taken.
If the employee’s contract of employment does not expressly provide for time off for appointments, you can insist they attend non-urgent medical appointments in their own time. The exception to this rule is for employees who are expecting a baby, where a pregnant employee can take paid time off to attend antenatal appointments, or the mother’s partner can take unpaid time off to attend up to two of these appointments.
Does an employer have to agree to emergency time off work?
If an employee requests time off work in an emergency, provided the reason for the request falls squarely within any one of the scenarios permitted under the ERA and they have complied with the notice requirements, either before or after their absence, they can make a complaint to the employment tribunal if you refuse that request. This is because any refusal to allow time off work as provided for by the ERA will be classed as unreasonable.
If an unreasonable refusal finding is made, the tribunal will make a declaration to that effect. It can also order you to pay an award of compensation, taking into account any default in refusing to permit time off and any loss sustained by the employee in consequence.
It is also worth bearing in mind that where an employee legally takes time off work in an emergency, they must not be subjected to any detriment because of this, including dismissal. If, for example, an employee is disciplined or sacked because they have taken a reasonable amount of time off work to care for their sick child, this will be classed as unfair for which they can again make a complaint to the employment tribunal.
How to manage time off work in emergencies
Establishing exactly when and to what extent the right arises to take time off work in an emergency can be tricky. The statutory right under the ERA limits an employee’s right to take a ‘reasonable amount of time off …in order to take action which is necessary’ depending on the circumstances. What constitutes ‘reasonable’ and ‘necessary’ is fact-specific, so emergency absences from work can only usually be dealt with on a case-by-case basis.
Still, care must be taken to ensure that your decision-making in authorising or refusing to authorise leave is both reasonable and consistent, in line with previous custom and practice. This will help to ensure that you do not discriminate against or treat employees unfairly in the same or similar circumstances, leaving any refusal decision open to challenge.
To avoid confusion or complaint as to how much time off work will be allowed and in precisely what circumstances, it is good practice to have an accessible policy that clearly outlines employee entitlement to paid or unpaid dependency leave. Your policy should also set out what alternatives are available to an employee for emergency or ongoing family situations falling outside the parameters of your policy requirements. These could include using paid annual leave entitlement, taking unpaid parental leave or making a flexible working request.
By incorporating a degree of flexibility into any emergency leave arrangements, you can avoid a situation where an employee is effectively prevented from dealing with an unexpected or ongoing critical situation at home, potentially resulting in stress-related sick leave or even the employee’s resignation. By providing a flexible and supportive approach, employees are also much more likely to be productive on their return to work, once the emergency is over.
DavidsonMorris’ employment lawyers can help with all aspects of workforce management and . Working closely with our specialist HR colleagues we provide comprehensive guidance on how to approach employee entitlements to minimise legal risk while ensuring commercial goals are achieved and employee engagement is optimised. For help and advice, speak to our experts.
Time off work rules FAQs
Can you take time off work for family reasons?
By law, employees can take a reasonable amount of time off work to deal with an emergency involving a dependant. The Employment Rights Act 1996 gives a definition of 'dependant' and lists the circumstances that apply to emergency absences.
What counts as a family emergency?
A family emergency can include caring for either a sick or injured child, spouse, partner or parent. It can also include where a dependant’s care arrangements have broken down, such as where the child’s nursery closes unexpectedly.
Can I take time off work for personal reasons?
Time off work can be taken for personal reasons, provided those reasons fall within the Employment Rights Act 1996: time off for dependants. There is no set amount of time though, as it depends on the situation.
Can I take time off for a family emergency?
ou can take time off for a family emergency, such as when a child or parent becomes ill or following the death of a loved one. Your contract of employment may also provide additional rights to take time off work.
Last updated: 30 April 2021