Time off for Dependents: Qua -v- John Ford Morrison Solicitors

The Employment Appeal Tribunal (EAT) has issued guidance, in Qua -v- John Ford Morrison Solicitors, about the extent of employees' rights to take time off for dependants under s. 57A of the Employment Rights Act 1996. This assists in clarifying the extent of the right - the absence of which, until now, has left employers guessing.

In a move that should offer some relief to employers, the EAT has confirmed that the right is to take a reasonable amount of time to deal with a variety of "unexpected or sudden events affecting...dependants" and is "... in order to take action which is necessary. In determining whether action is necessary factors to be taken into account will include, for example, the nature of the incident which has occurred, the closeness of the relationship between the employee and the particular dependant and the extent to which anyone else was available to help out."

It will always be necessary to enquire into the individual circumstances. In determining what is necessary and reasonable, where the employee has previously exercised his or her right under s. 57A in order to deal with the same problem, it is legitimate for the employer to take into account the number, length and dates of subsequent absences. The EAT also indicated that the right under s57A is not to take "unlimited amounts of time off under this section" even if in each case the notice requirements are complied with. Once a particular problem is known then the extent of the right under s57A is to take time off to deal with complications or something else unforeseen which may arise.

However, the EAT did not jump on the employer's bandwagon wholeheartedly. Disruption or inconvenience to the employer's business is not a legitimate factor to be taken into account in deciding whether the time off is reasonable. Whilst there is a requirement to inform employers of the reason of the absence as soon as reasonably practicable and the likely length of it there is no obligation on employees to give daily updates.

In deciding whether a dismissal is automatically unfair, employment tribunals should be asking the following questions:

(1) Did the employee take time off or seek to take time off from work during her working hours? If so, on how many occasions and when?

(2) On each of these occasions, did the employee:

(a) as soon as reasonably practicable inform her employer of the reason of her absence; and
(b) inform him of how long she expected to be absent;
(c) if not, were the circumstances such that she could not inform him until she had returned to work?

If the requirements under (2) are not satisfied then there can be no right to take time off under s57A, the absences would be unauthorised and the dismissal would not be automatically unfair (although if the employee has the required length of service, ordinary unfair dismissal may apply). If the requirements under (2) are complied with, a tribunal should go on to ask:

(3) Did the employee take or seek to take time off work in order to take action, which was necessary to deal with, one or more of the five situations listed at paragraphs (a) to (e) of s57A(1)? These being:

(a) to provide assistance on an occasion when a dependant falls ill, gives birth or is injured or assaulted;
(b) to make arrangements for the provision of care for a dependant who is ill or injured;
(c) in consequence of the death of a dependant;
(d) because of the unexpected disruption or termination of arrangements for the care of a dependant; or
(e) to 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.

If so, was the amount of time taken reasonable in the circumstances?

If the employee satisfies (3), the tribunal should finally ask:

(4) Was the reason or principal reason for the dismissal that the employee had taken/sought to take that time off work?

If the answer to that question is "yes", the employee is entitled to a finding of automatic unfair dismissal.

Implications

What does this mean in practice? As so often in the employment relationship effective communication is the key. Employers should: - have an appropriate policy in place and take steps to train managers and employees about what it means;

- ensure employees understand that the right to time off for dependants is essentially to deal with an emergency and that if the problem is long-standing unless something genuinely unexpected occurs the employee should be making alternative arrangements rather than taking dependants' leave (this could be another type of leave or it could involve someone else dealing with the situation);

- tell employees that they need to explain the nature of the problem that has arisen and the likely length of absence as soon as possible when the need for dependants' leave arises;

- assess whether, given the facts in each situation, the time off is reasonable within the meaning of the guidelines outlined above and remember sufficient information from employees will be necessary to do this (if this isn't available ask the employee for it);

- in any case where either the time off doesn't appear to be reasonable (that includes the reason it has been taken or the length of absence) or where there has been inadequate notification, assess whether the issue is sufficiently serious to merit disciplinary action. If it is, do not take any action without applying the disciplinary procedures.

If the guidelines are followed and the disciplinary procedure applied this is likely to considerably reduce the risks of employers failing to act reasonably or falling foul of the requirements of procedural fairness. This is turn should, of course, reduce the risks of claims being made and the consequential costs associated with that.

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