Royal Bank of Scotland Plc v Harrison EAT/0093/08

time off for dependants | detriment | whether disruption to childcare unexpected

The Employment Appeal Tribunal (EAT) has upheld an employment tribunal decision that an employee was entitled to take time off to care for dependants and suffered a detriment for doing so. The meaning of “unexpected” in relation to the disruption to an employee's childcare arrangements does not involve a time element.

Mrs Harrison worked for Royal Bank of Scotland Plc (RBS) and has two young children who were looked after by a childminder while she was at work. On 8 December 2006 she was informed by her childminder that she would not be able to look after the children on 22 December. Mrs Harrison attempted to make alternative childcare arrangements but was unsuccessful. She took 22 December off work and was given a verbal warning. She claimed that she had been subjected to a detriment for taking time off work under s.57A(1)(d) of the Employment Rights Act 1996, which entitles employees to reasonable time off work “to take action which is necessary … because of the unexpected disruption or termination of arrangements for the care of a dependant”.

The employment tribunal held that Mrs Harrison was entitled to the time off, therefore her claim that she had suffered a detriment for exercising that right succeeded. On appeal, RBS argued that the correct way to construe s.57A(1)(d), in accordance with Parliament’s intentions, is to insert the words “sudden and” before “unexpected”. Situations such as this, where there was a two-week gap between Mrs Harrison becoming aware of the problem and the date that the problem took effect, did not come within the remit of the provisions, which were intended to cover true emergencies.

The EAT disagreed. When deciding whether or not there was a right to time off, tribunals could take account of the time between the employee becoming aware of the risk of disruption to childcare arrangements and the event, but the element of time was relevant mainly to the issue of whether or not it was necessary for the employee to take the time off. The word “unexpected” does not involve a time element. Taken literally, once an employee tried to make alternative arrangements, the disruption was no longer unexpected – it was unexpected only at the point of the employee learning of it. Like “necessary”, the word “unexpected” should be given its natural meaning. There was no justification for importing words into the statute. The appeal was therefore dismissed.

Case transcript of Royal Bank of Scotland Plc v Harrison (Microsoft Word format, 98K) (on the EAT website)

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