Human Capital Services Business Matters - 16th February 2009
Taking Time Off During Working Hours
An Employment Appeal Tribunal has determined that an employee of the Royal Bank of Scotland who knew in advance that her childminder would be unavailable was entitled to take time off to look after her children.
“Sorry, I can't come to work — my childminder has let me down,” is a not unfamiliar phone call and one that can cause a great deal of stress and inconvenience for employers.
What does the law say?
Employees can take reasonable (unpaid) time off where necessary:
· To provide assistance to a dependant who becomes ill, gives birth, is injured or is assaulted (the illness/injury does not have to be serious)
· To make longer-term care arrangements, e.g. taking time off to find and employ a temporary carer (but not taking further time off to care for the dependant himself or herself)
· To deal with logistical aspects following the death of a dependant (e.g. arranging or attending a funeral)
· To deal with unexpected disruption, termination, or breakdown of arrangements for a dependant's care
· To deal with an unexpected incident involving the employee's child during school hours.
It does NOT cover household emergencies (e.g. a burglary). Nor does it apply to time off planned in advance (e.g. to attend a dependant's hospital appointment) for which the employee will need to take annual leave, agree paid or unpaid leave, or unpaid parental leave (if eligible).
“Dependent” includes children, spouses, civil partners, parents (but not grandparents) and others who live with the employee.
Employees’ obligations
An employee must notify his or her employer as soon as possible that he or she needs to be absent and how long he or she expects the absence to last. This does not need to be in writing, nor does evidence have to be provided to prove that the time off is needed.
The RBS Case
Mrs Harrison had two young children. Her childminder told her on 8 December 2006 that she could not care for the children on 22 December. Mrs Harrison tried to get someone else to help, but failed. On 13 December she asked for the time off. On 20 December her employer said that she could not have the leave and, if she took the time off that it would be treated as unauthorised absence.
Mrs Harrison stayed at home on 22 December with her children. She was given a verbal warning. She challenged this at tribunal, complaining that she had been subjected to an unlawful detriment (the issue of the warning) for exercising the right to time off.
The Appeal Tribunal found that, whilst Mrs Harrison knew in advance that her childminder would be unavailable, it was, nonetheless, “unexpected” at the time that Mrs Harrison learnt of it and she had tried to make alternative arrangements.
HCS Top Tips
Employers need to be familiar with the different scenarios in which this right to time off arises. Where it is left to line managers to operate the policy, care should be taken to ensure they understand how to respond to the different scenarios and to ensure consistency across teams and departments.
It is also worth noting that there is no requirement under this right to pay employees who take time off. This should be reflected in policies.
HCS can:
· Review your policy to ensure that it lists the circumstances in which employees may take such time off and set out your notification procedures
· Ensure that your disciplinary policy states that breach or abuse of the policy may result in disciplinary action
· Provide training for your line managers in how the policy should operate and in how to deal with employees who ask for time off
· Advise you on how to publicise the policy among staff
· Ensure consistency in the application of the policy.
If you wish to discuss further with one of our Consultants, please call us today on 0141 776 6456 or email enquiries@humancapitalservices.co.uk
19 February 2009, webeditor
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