Time off for dependants: tribunal considers reasonableness of six absences totalling seven days in 12 months
Naisbett v Npower Ltd ET/2502795/12
Date added: 6 February 2013
time off for dependants | "reasonable" amount of time off | detriment
The employment tribunal held that a mother's six absences totalling seven days in a 12-month period constituted a "reasonable" amount of time off for dependants under s.57A of the Employment Rights Act 1996.
Practical tips
Employees can take a "reasonable" amount of time off for dependants to enable them to deal with a variety of unexpected or sudden events affecting their dependants, and to make any "necessary" longer-term arrangements for their care.
When deciding what is a "reasonable" amount of time off, employers sometimes wrongly concentrate on the disruption to their business. The real issue is whether or not each absence is because of a genuinely unforeseeable emergency.
This employer failed to provide the employee with any indication before her warning that her absences were being questioned. An informal conversation to discuss an employee's situation is normally a better starting point if the employer suspects that the employee is abusing the right.
Ms Naisbett, who worked from 9am to 5pm from Monday to Thursday, has a child who was three years old at the relevant time. The child attended nursery, and Ms Naisbett could receive only limited childcare help from her partner because he worked away from home and from her parents because they ran two public houses. In general, it fell to Ms Naisbett to look after the child when he was too ill to attend the nursery.
From March 2011 to February 2012, Ms Naisbett had seven days' absence (five one-day absences and one two-day absence). On each occasion, she invoked the employer's policy on time off for dependants and was granted the emergency absence. It was accepted that she followed the employer's procedure (telephoning on the morning of each day's absence) and that the reason for her absence was entirely due to her son being ill and not able to attend the nursery, and the absence of anyone else to look after him.
In February 2012, the employer invited Ms Naisbett, who had been given no prior indication of any concerns, to a "formal capability meeting" for "non-medical absence". The outcome of the meeting was a letter giving her what the employer described as a "first written notification of concern" and threatening her 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 for exercising her right to time off for dependants.
The employment tribunal rejected the employer's argument that its "first written notification of concern" did not amount to a warning and could not be a detriment. The letter was identical to a written warning under the employer's disciplinary procedure and Ms Naisbett was left in no doubt that, if her attendance did not improve, further action, including dismissal, could be taken.
The employment tribunal, noting the lack of case law on time off for dependants, relied on the EAT guidance in Qua v John Ford Morrison Solicitors [2003] IRLR 184 EAT. The EAT said that the employee is not entitled to unlimited time off and the right is to deal with something unforeseen. Once it is known that a child has a medical condition that makes relapses likely, the employee is entitled to reasonable time off work to make longer-term arrangements for care. Where the line should be drawn is a matter to be decided on the facts of each case, with the foreseeability of the absence being key. In determining what is a "reasonable" amount of time off for dependants, disruption or inconvenience to the employer caused by the employee's absence is not a relevant factor.
Applying these principles to this case, the tribunal concluded that, taking all the circumstances into account, the claimant in this case had not taken an unreasonable amount of time off under s.57A of the Employment Rights Act 1996.
The tribunal accepted that Ms Naisbett had not suffered any financial loss, but found that the written warning was a detriment because it could be taken into account in the future, for example if the claimant was up for promotion. The tribunal awarded £1,000 to Ms Naisbett for the detriment.
View the full transcript of the case (PDF format, 614K)
Additional resources
- Line manager briefing on time off for dependants This line manager briefing explains the right to take time off for dependants, and aims to guide managers on dealing with employees who take time off under this right.
- Time off for dependants policy Use this model policy to set out your organisation's policy on time off for dependants.
- Time off for dependants The HR & Compliance Centre quick reference section explains the circumstances in which employees are entitled to take a reasonable amount of unpaid time off for dependants.
