Mark Hamilton: You dependents come before your work in some circumstances

Looking after poorly children or ageing relatives who need care at short notice often presents a challenge, which may be further exacerbated by the need to take time off work without much notice. However, there is an entitlement to take unpaid leave under certain circumstances under UK employment law so both employers and workers should know where they stand.

Mark Hamilton is a partner at Dentons.

Under sections 57A and 57B of the Employment Rights Act 1996, employees are entitled to take a ‘reasonable’ amount of unpaid leave, during working hours, to take ‘necessary action’ to deal with emergency situations involving their dependants. What constitutes ‘reasonable’ and ‘necessary’ is fact-specific, while who is considered a dependant is defined in the law.

A dependant is normally a spouse, a partner or civil partner, a child, a grandchild or a parent. It can also be anyone who lives in the employee’s house – excluding tenants, lodgers and boarders. There are certain circumstances where others who depend on the employee for care or assistance are also ‘dependants’.

The right to take leave to care for dependants applies to all employees. This includes part-time employees, those on temporary contracts, and those on fixed-term contracts. It is a ‘day one’ right and there is no minimum length of service required.

Where things get a little more complicated is when it comes to determining what incidents, illnesses or emergencies entitle a worker to trigger these rights and take leave.

The 1996 Act states that employees can take reasonable time off when it is necessary in order to:

l provide assistance when a dependant falls ill, gives birth, is injured or is assaulted;

l make arrangements for the care for a dependant who is ill or injured;

l handle the unexpected disruption or termination of arrangements for the care of a dependant; and

l deal with an incident which involves a child of the employee and which occurs unexpectedly in a period during which an educational establishment which the child attends is responsible for him/her.

Additionally, the consequences of the death of a dependent also qualify as a valid reason.

This list is exhaustive. If an employee is seeking emergency time off for any other reason – for example, to take a dependant to a planned medical appointment – it will not be covered under the statute and an employer may wish to refer an employee to an alternative time-off policy.

Since the nature of time off for dependants is typically to deal with unforeseen circumstances, it is normally not possible for an employee to give much, if any, notice. However, the employee must tell the employer the reason for the absence as soon as reasonably practicable, and when they expect to return to work.

There is no statutory obligation on employers to pay employees for the time they take off to care for dependants. In practice many employers allow time off for personal emergencies as a matter of course and, for short periods at least, may choose not to deduct any pay.

Rights to care leave vary around Europe, with some countries offering generous social insurance compensation to employees unable to attend work for this reason. In Sweden, carers are entitled to leave for as long as they are eligible for compensation from the social insurance system – up to 100 days per person cared for. In Germany, employees can take up to ten days off work to take care of close relatives who are in urgent need of care. They can also take nursing care leave of up to six months for a close relative, although that requires prior written notice.

From a Scottish employers’ point of view, any request for such leave should be considered under UK law, as well as any policy on the matter that your organisation has in place.

If you feel the right to take time off is being abused, this should be dealt with through the company’s disciplinary procedure. However, approach this with caution, since an employee who is refused permission to take time off for dependants, or who is subjected to a related detriment, could complain to an employment tribunal.

Mark Hamilton is a partner at Dentons