Any employee working in the UK is entitled to unpaid leave to deal with a situation involving a dependant, which would generally involve some kind of emergency. A dependant is classed as an employee’s spouse, civil partner, child or parent, a person who lives in their household (excluding tenants, lodgers, boarders and employees) or someone who relies on them for assistance.

Employees have the right to take a “reasonable” amount of time off work in order to take action which is “necessary” to deal with particular situations affecting their dependants and to make any necessary long-term arrangements. For example, to provide assistance or make arrangements when a dependant falls ill or is injured; or to deal with an unexpected incident which involves the employee’s child while they are at school.

The right provides a “reasonable” amount of unpaid time off to deal with the emergency but case law has made clear that in some circumstances the emergency does not have to be sudden and unexpected. In other words, an employee might know in advance that they will need some emergency leave and that may be permissible within the legislation.

Important Considerations

You should have a policy in place so employees know what they have to do in asserting this right, particularly in terms of notice. Where an employee fails to notify their employer of their absence as soon as reasonably practical they lose the legal protection of asserting the right and can be subjected to disciplinary action and possibly dismissal. Although, it may be advisable to consider (where appropriate) to exercise your discretion in some circumstances.

An employee needs only to provide the employer with sufficient information to understand that they are asserting this right and their expected return date. There is no requirement for the employee to provide the employer with detailed information.  

Dependants’ leave should not be confused with other types of leave. For example, where an employee’s absence is in consequence of the death of a dependant, leave may be granted to allow them to carry out practical arrangements such as organising the funeral and collecting the individual’s belongings . If time off is required for grief this would usually be dealt with as compassionate leave, and this would not be covered by dependants leave. (There is no statutory right to compassionate leave, but some employers may have a specific policy to deal with this.)

Sometimes, large amounts of leave may be taken over a short period of time. Care should be taken that those requests are still handled fairly and consistently with an employee’s rights; if properly made, the frequency of the requests will not necessarily justify a dismissal. The legislation does not specify what time off is reasonable and where an individual has a child with a long-term medical condition then a lengthy period of absence may be appropriate.  It is important to consider the leave on a case by case basis and not to have a standardised approach to all absences for emergency dependants leave. However, you  may also wish to consider other types of leave such as compassionate leave or statutory parental leave which may be more appropriate in these circumstances.

The risk to an employer

Where an employer acts in breach of the legislation an employee may seek to make a claim for compensation and/or automatic unfair dismissal. There is no requirement for two years’ continuity of service to bring a claim and it is one of the ‘day one’ rights that an employee has from the start of employment. In addition, depending on the relevant circumstances, the employee may potentially seek to bring a claim for discrimination on the grounds of sex and/or association with a disabled person.

What can you do?

Where an employee has complied with the legislation then they should not suffer any detriment or be dismissed as a result of doing so. However, it is important to keep the lines of communication open prior to, during and after the period of leave. Where someone is persistently absent then consider a conversation about how the business may assist. Very few people want to take unpaid leave and considering the possibility of flexible working with a change in working pattern or location may assist the employee in returning to work and reducing the periods of absence. Such changes cannot be forced on the employee but if handled carefully, they may be grateful for the opportunity to discuss changes to assist them.

Remember, too, to consider the impact on the rest of the team. Where other team members are required to pick up the workload ensure that you check in with them regularly to check that they are not overloaded or suffering stress as a result of the additional work.

Any mistakes in this area can be costly in terms of time, expense and the businesses reputation and it is therefore important to take appropriate advice.

Our employment solicitors work in partnership with organisations to improve their HR practices and advise on employment issues. To discuss this article or any other HR issue call 01392 210700 or employment@stephens-scown.co.uk.