While the law is very clear on the rights employees have to time off and pay when a child is born, it is a bit more fluid when it comes to taking leave to care for dependants. It isn’t always easy to find out what the different options available. It’s therefore important for employers to know what these rights are and guide employees through their options when they need to take time off in these situations.
There are three main ways to take time off to care for a dependant.
Firstly, unpaid time off for dependants. This is a right to unpaid time off to make arrangements for the care of a dependant in an emergency.
A dependant is defined as their spouse or partner, their child, their parent, a person who lives in their household (other than as a tenant or lodger) or a person who relies on them, such as an elderly neighbour.
It is a right to ‘reasonable’ time off which is usually interpreted as a day or two. It shouldn’t be used for long term care and if that is needed other options should be used after the initial days leave has been taken.
What constitutes an emergency isn’t always clear, but it is expected to be used to help someone who has fallen ill, to respond to a burglary, to provide childcare when a school unexpectedly closes for the day or to make arrangements when a dependant dies.
Secondly, paid or unpaid special leave. Employers can offer special leave to employees at their discretion.
When there isn’t a written policy in place it’s important to make sure decisions are made fairly and consistently – ie if all men were granted paid leave when they requested it but all women were granted unpaid leave there would be a risk of a potential discrimination claim.
Special leave is most likely to be helpful where someone has taken time off for dependants to deal with an emergency and has identified they need more time to deal with the situation.
Thirdly, unpaid parental leave. Employees with more than one year of service have the right to take unpaid parental leave to care for a child. Each parent can take up to 18 weeks of parental leave for each child until the child turns 18. The leave must be taken in blocks of weeks and a maximum of four weeks can be taken each year per child. Parents with a disabled child can take parental leave in blocks of days rather than weeks.
This leave is not so suitable for emergency situations though, as an employee is supposed to give their employer 21 days’ notice, although employers can agree to waive this notice period. Employers cannot refuse parental leave completely, but they can postpone it for up to six months if it will cause problems at work due to key deadlines or a shortage of staff.
Employees could also use holiday to take time off to care for dependants or, if their health is also affected by the situation they are dealing with, they may take sickness absence. This should be based on their own health and not their dependant’s health.
Employees may also be able to take compassionate leave if a dependant dies, although there is no legal right to this leave and it is at the employer’s discretion. Employers who are too strict with their policies on compassionate leave or who refuse employees the right to take time off when someone they care about has died could find themselves facing challenges within the workforce and a lack of employee engagement.
The government has also recently announced a new protection for carers. It is not yet in force, but the Carer’s Leave Act 2023 will create a new statutory entitlement to one week of flexible, unpaid leave per year for employees who are caring for a dependent with a long-term care need. It will be limited to situations involving an employee’s spouse, civil partner, child, or parent who has a long time care need, who lives in the same household as the employee and who reasonably relies upon the employee to provide or arrange care and that has a long-term care need.
Knowing and fairly applying entitlements
Employees are the lynchpin of all businesses and supporting them can create a happy, engaged and committed workforce.
There are also potential legal consequences of failing to do so. There are risks of grievances or constructive unfair dismissal claims if an employer refuses a reasonable request for time off. An employer who treats employees unfairly for taking the time off, for example by refusing them training or a promotion, or who dismisses an employee because they’ve exercised these rights, could also face employment tribunal claims.
Employers should always consider the full picture when an employee requests time off and consider the different ways that the employee could be supported and how their needs can be met, whilst at the same time protecting the business and ensuring service levels are still met.
Claire Merritt is a partner in the employment team at Paris Smith solicitors