Extension of right to time off when care arrangements are disrupted

Employers are sometimes frustrated by employees who frequently take time off when problems occur with their arrangements for care of a child or dependent. Following a decision of the Employment Appeal Tribunal, far greater care will have to be taken if disciplinary action for absence of a carer is considered.

The decision in Harrison v. The Royal Bank of Scotland Plc (2008) greatly expands the circumstances in which the legal right to take time off following a disruption in care arrangements will apply.

In this case, Ms Harrison was told on 8 December that her regular childminder could not look after her children on 22 December. We are told she used all her contacts but couldn't find a substitute childminder. The bank told her she could not have the time off and, when she took the day off, she was given a warning.

The Tribunal found that the warning was an unlawful detriment. She relied upon the right to take reasonable time off to take action which is necessary because of the unexpected disruption of arrangements for the care of a dependent. The bank argued that such disruption to care must be sudden and unexpected and that the law was never intended to cover a breakdown in care arrangements which the employee knew about that far ahead.

The EAT has rejected this argument and said that the qualifications in the law are "unexpected" (which was satisfied here because she had expected her childminder to be available) and "reasonable time off" (so she must convince the tribunal that she tried but could not make alternative arrangements), but not that the time off must be on the day or immediately after discovering the disruption.

This causes a practical problem for employers and will in reality greatly extend this right. The EAT talks about the fact that the longer the notice the employee had, the more likely it is that the employee could make other arrangements and therefore the more carefully the tribunal should scrutinise the reasons given. However this is of little practical value to an employer trying to improve the attendance of an employee who is frequently off, where they are told a future absence is required because of childcare issues.

It is very difficult for an employer to look into the availability of alternative childcare and therefore employers are left with little choice but to take an employee's confirmation that they cannot get cover at face value. So when an employee says they cannot work because their childminder is away, their children's school is on strike, or even that the carer that had been booked to look after their granny (who lives with them) has cancelled for next week, an employer will take a risk in taking any action as a result. This applies even if the breakdown in care arrangements is known about several days (or possibly even weeks) ahead.