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Employment law for employees & Employment law for employers
Taking time off to care for others is a challenge both for employers and employees. Understanding what employees’ rights are and how this should be handled by employers has never been more important as we reach the peak of the pandemic. Our Employment team explores.
22 January 2021
Under sections 57A and 57B of the Employment Rights Act 1996 all employees are entitled to take a ‘reasonable’ amount of time off from work to take ‘necessary’ action to deal with unforeseen emergencies involving their dependants. Whilst this sounds like a straightforward concept, it needs to be broken down to make sure employers are getting it right and employees know what they can expect.
Who can take time off to look after dependants?
All employees can do so regardless of length of service, whether the employee is part-time or full-time, and whether they are on a fixed term or permanent contract.
What does ‘dependant’ mean in law?
Dependants could include:
What kind of incident would allow an employee to take time off?
Time off can be taken to deal with emergencies involving a dependant. Emergencies are unplanned, and could include:
Employees do not need to give a period of prescribed notice to their employer but should inform them as soon as possible if they are not going to be able to attend work. There is no limit to the number of times an employee is allowed time off work to care for a dependant, but the duration must be reasonable.
What is a ‘reasonable’ length of time?
This will depend on the situation. In some cases, it may only be reasonable for an employee to take a few hours or one day off – for example, arranging for a replacement carer to arrive. In other instances, such as planning the funeral of a deceased dependant, more time off is likely to be reasonable.
The impact on Covid-19 is different for everyone. For some, it can be a long and severe illness and employers will need to bear this in mind when dealing with employees taking time off to look after someone with the virus. Our view is that employers should not implement a ‘one size fits all’ policy regarding employees’ time off to care for dependants with the virus, and instead should consider each case on an individual basis.
Pay while taking time off to care for a dependant
Whilst an employee has the right to take time off, they do not have a right to be paid unless it is in their contract or, in some circumstances, in the employer’s handbook or other policy. If an employer offers to pay for dependant leave it should be applied consistently. To cherry pick could put the employer at risk of an Employment Tribunal claim for discrimination (such as discrimination against an individual who is associated with a disabled person).
Ignoring an employee’s right to time off to care for dependants
If an employer ignores or unreasonably refuses an employee’s right to take time off to care for a dependant they could face a claim.
The new development in this area is that if an employee has caring responsibilities which have arisen from Covid-19 meaning the employee is either unable to work (including from home) or only able to work reduced hours, that employee will likely be eligible for furlough.
These ‘caring responsibilities’ include caring for children who are at home as a result of school or childcare facilities closing, or for vulnerable individuals in the employee’s household.
Employers have no obligation to put employees on furlough even if they are eligible. However, we recommend that employers should where possible seek agree a solution with their employees that works for everyone, including asking employees with full time dependant commitments if they would prefer to be furloughed. Reaching agreement can help to maintain good employer-employee relationships and boost morale. It might also make the employee more productive during the hours they can work or when they return to work.
If you have any questions about time off to care for dependants, eligibility for furlough or any other employment related queries then the Collyer Bristow Employment Team is on hand to help.
22 January 2021
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