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Dependants’ leave – how long is too long?

In the case of Naisbett v Npower Limited an Employment Tribunal considered whether a mother’s seven days’ absence over 12 months was a reasonable amount of dependants’ leave in order to care for her child.

BackgroundThe stairway to success

Employees are entitled to unpaid time off work to deal with particular situations affecting their dependants. This might include picking up a child who falls ill at school; making funeral arrangements on the death of a dependant; or taking a spouse to hospital following an accident.

Employees are entitled to a ‘reasonable’ amount of time off to take action which is ‘necessary’ in the particular circumstances: what this means will vary from case to case and is likely to depend on, for example, the nature of the incident and whether anyone else is available to help.

If you unreasonably refuse time off when an employee is entitled to it, or subject them to a detriment (such as disciplinary action) or dismiss them for taking or seeking to take time off for dependants, they may be able to bring an employment tribunal claim, and could be awarded compensation if their claim is successful.

Naisbett v. Npower Limited,

Ms Naisbett worked for Npower, four days a week on a full-time basis. While at work, her three year old son attended nursery.

Between March 2011 and February 2012, Ms Naisbett had a total of seven days’ absence (five one-day absences and one two-day absence) to look after her child when he was too ill to attend nursery. On each occasion, she invoked the employer’s policy on time off for dependants and was granted the emergency absence.

In February 2012, without any prior warning, Npower invited Ms Naisbett to a formal capability meeting due to her levels of non-medical absence. Following the meeting, she was given a “first written notification of concern” and threatened with dismissal if she had “further unsatisfactory attendance due to time off for dependants”.

Ms Naisbett brought a tribunal claim alleging that she had been subjected to a detriment in relation to time off for dependants.

Tribunal decision

The employment tribunal held that the first written notification constituted a detriment because it threatened Ms Naisbett with further disciplinary action if she took more time off to care for dependants.

The employment tribunal did acknowledge, however, that employees are not entitled to unlimited time off – the right is to deal with one-off, unforeseen emergencies such as the short-term illness of a relative.

If a dependant suffers from an underlying medical condition which is likely to cause regular relapses it will depend on the circumstances whether your employee is entitled to time off for dependants when a particular relapse occurs, or whether they ought to have put in place longer-term care arrangements to deal with such relapses.

Where the line should be drawn as to what is a reasonable amount of time is a matter to be decided on the facts of each case, with the foreseeability of the absence being key.

In finding that Ms Naisbett had taken a reasonable amount of dependants’ leave in this case, the tribunal took into account that:

  • She had followed the employer’s procedure on each occasion (telephoning on the morning of each day’s absence);
  • The reason for her absence was due entirely to her son being ill; and
  • There was no other parent or relative nearby to look after the child.

Crucially, the tribunal emphasised that disruption or inconvenience caused to a business by an employee’s absence for dependants’ leave are irrelevant factors which should not be taken into account.

While Ms Naisbett had not suffered any financial loss, the written warning was a detriment and the tribunal felt that it may affect her adversely in the future, for example if she applied for promotion. Accordingly, the tribunal awarded compensation of £1,000.

The tribunal noted in this case that there is a significant lack of case law on what is a reasonable amount of dependants’ leave. From the tribunal’s reasoning it is clear, however, that greater emphasis is placed on the circumstances of the employee, rather than the impact on the employer’s business.

More information on dependant’s leavebres

Users of Workbox, our employment team’s online HR site, can access continually updated information in the Time off for Dependants section of our site. This includes FAQs on:

  • Who counts as a dependant?
  • The circumstances in which time off is permitted
  • Does the right cover planned medical appointments?
  • What if a dependant suffers regular relapses?
  • What if an employee knows of disrupted care arrangements in advance?
  • How much notice does an employee need to give?
  • Can we ask for evidence regarding time off for dependants?

Contact us or speak to your usual Brodies’ contact to discuss a free trial or subscription options.

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