Time off for dependants
An employee may need to take a reasonable amount of unpaid time off work to provide assistance or support for a dependant or to take any action that is required in a particular situation. The right applies to unplanned leave and includes, for example, time off to care for a dependant who falls ill or is injured.
In Henderson v AccountsNET Ltd, an employee was awarded £13,081 after being unfairly dismissed after she left the office to collect her ill child from school.
Child with underlying health condition
Mrs Henderson was employed on a full-time basis at an accountancy practice. Her normal hours of work were 35 hours per week, working from 9am to 5pm.
Mrs Henderson’s child had an underlying health condition which required medical attention as well as additional care and support from Mrs Henderson.
On 8 January 2020, Mrs Henderson contacted her line manager to advise that her child was unwell, and she would need to remain at home to care for them. She was thereafter absent on 8, 9 and 10 January 2020.
This was recorded as compassionate leave for the first day and unpaid leave for the subsequent two days.
Flexible working agreed
A flexible working pattern was agreed in late January where Mrs Henderson would not take a lunch break to enable her to finish at 3pm so she could be at home when her child finished school.
Flexible working withdrawn
In March 2020, a meeting took place where Mrs Henderson was informed that the flexible working arrangement could not continue because this was having a detrimental impact on business. Mrs Henderson stated that she could not work full-time hours because she needed to provide support to her child.
Shortly after the meeting, she received a text message relating to her child who was unwell and would need to be taken home. As no managers were available to speak to, and unsure of what to do in an emergency situation, Mrs Henderson informed her colleagues that she had to leave to collect her child and she would not be back that day. She later sent a text to the practice manager to let them know of the situation.
Unwell with stress
On 2 March 2020, a letter was sent to Mrs Henderson stating that she was required to work full-time hours, and this would begin the following week. She became unwell with stress as a result of the meeting and was signed off for two weeks.
Termination of employment
On 6 March 2020, a letter was sent to Mrs Henderson terminating her employment.
The first reason related to her attendance, noting that she had taken five days unpaid leave and 12 days sickness absence. This included the fact that she had failed to follow the absence notification procedure, sending a text message rather than telephoning the office, as well as the fact it was reported as sickness absence when it was in fact her child who was unwell.
Finally, Mrs Henderson had left the office without authorisation on 2 March 2020 which amounted to gross misconduct and was the principal reason for dismissal. She was provided with no right of appeal.
Automatic unfair dismissal
Mrs Henderson brought a claim for automatic unfair dismissal under s99 of the Employment Rights Act 1996.
This makes it automatically unfair to dismiss an employee if the reason or principal reason is of a prescribed reason which includes time off for dependants leave under s57A of the Employment Rights Act 1996. This provides that ‘an employee is entitled to be permitted by his employer to take a reasonable amount of time off during the employee’s working hours in order to take action which is necessary to provide assistance on an occasion when a dependant falls ill, gives birth, or is injured or assaulted’.
An employee does not need the required minimum of two years’ service to be able to bring a claim for automatic unfair dismissal.
Having considered the evidence, the employment tribunal (ET) concluded that it was clear Mrs Henderson’s absence was necessary to provide assistance to her child who was ill. The employer was made aware of this fact and the likely length of absence because she had informed her colleagues and sent a text message to the practice manager. This was also done as soon as reasonably practicable and was a reasonable period of time off given the leave amounted to one day.
The ET therefore held that the principal reason for dismissal was taking time off work to care for dependants and this element of the claim was successful.
Importance of clear policies
It is important for schools to publish clear policies for employees because they provide consistency, transparency and organisational standards for all, while minimising risk.
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