Employee absence and time off work is a tricky issue for employers: what constitutes unauthorised absence, when does short term illness become long-term and what can the employer do to reduce costs? Our research indicates that, the truth is, very few employers understand how to manage absences at work, and often handle them on a cases by case basis, leading to accusations of discrimination and unfair treatment by employees.
At Avensure we are inundated with cases relating to employee time off work, and so I’ve put together some guidance on what employers need to think about when dealing with absence issues. The article cant cover for every eventuality and so, if unsure, I recommend you calling Avensure – a leading employment law specialist in outsourced HR – for further advice and assurances on your next steps, so as to avoid over-stepping the mark.
Employees and employers often get confused as to which type of leave they are entitled to when life throws one of those curve balls.
General Emergency Leave is to be agreed between the parties in the employment contract and aspects may be covered in the documents that make up the employment contract, most likely in the employee handbook. An employee may request this type of contractual emergency leave if the house is flooded after pipes have burst in the big freeze or if Tiddles the cat has fallen ill after eating the goldfish from next-door’s pond and needs a trip to the vet. The employer can consider these requests on their merits yet is not compelled to grant them. A call to the Avensure advice line is recommended at this point. Your advisor will be able to lend their experience to assist you in dealing with such requests in a fair, consistent and sensible manner.
Time off for dependents
There are certain situations where the employee may have the right to time off with the employer unable to unreasonably refuse reasonable time off: this is time off work for dependents.
Under the Employment Rights Act 1996, all employees (regardless of their length of service) have the right to take a ‘reasonable’ amount of unpaid time off work without notice to deal with particular unexpected emergencies affecting their dependents.
So let us break down the key words here.
Dependents, who are they?
A spouse or partner, child or parent, someone living in the employees abode as a member of their family, for example step children. This could also include someone who reasonably relies on the employee as their primary carer, for example Mr Bloggs the elderly neighbour (who is now short on gold fish thanks to Tiddles).
When can the right to time off for dependants be exercised?
In a genuine emergency where the employee was not aware in advance, including injury or illness, either mental or physical, this does not need to be life threatening, lead to hospitalisation or trigger a need for full time care. Extreme upset to a dependent could constitute an emergency, for example if a dependent is assaulted or subject to a burglary without being physically injured, then the employee could take time off for dependents to comfort the victim. If a dependent goes into labour unexpectedly and relies on the employee to get them to the hospital (or birthing pool as Mr Blogg’s fish pond will just not do), then this type of leave will be triggered. Dealing with the immediate effects of a dependents death (the loss of that gold fish was just too much for Mr Bloggs) would constitute an emergency affecting a dependent..
There is no clear definition as to what this may amount to but Acas give a clue in their guidance that ‘one or two days should be sufficient in most cases as this leave is to deal with an initial crisis’. The key is each case on its merits.
No notice is required
By its very nature, if an employee is able to give you notice then this will not be time off for dependents as the type of incident that triggers the right is an unexpected emergency. However the employee is required to inform the employer as soon as possible, including the reasons for the absence and expected length of the absence.
There is no requirement for the employee to provide written proof of the trigger incident, and there is no limit on how often the right can be asserted.
As this type of leave is triggered by an emergency, the employee may have to leave immediately before they are able to inform the employer. If the employer suspects misuse of the right to this time off then an Avensure adviser will assist in the planning and carrying out of a full investigation to see if formal action is required. If this results in a dismissal, then the employee can make a valid claim for automatic unfair dismissal if he or she can convince the tribunal that they were dismissed for asserting their statutory right.
The employer should not refuse a reasonable request and can not treat the employee unfairly for asserting their rights, nor can they be dismissed or selected for redundancy because they have taken time off for dependents
Time off for dependents is unpaid.
Unless agreed or pre agreed in the contract of employment, there is no right to receive pay for this type of leave.
Knowing who to call
A call to Avensure advice line when these requests arrive will ensure the correct types of leave are given and logged accordingly.
Any requests that do not fit the definition of the Employment Rights Act 1996 are not statutory requests so any planned activities, including assistance for those that are not dependents (such as Tiddles) can be considered if you wish but are not a statutory request and can be fairly refused but even with these type of requests.