Employees have a statutory right to take a reasonable amount of time off for human dependants. The time off is to enable them to deal with a variety of unexpected events affecting their dependants, and to make any necessary longer-term arrangements for their care. When deciding on the length time that "reasonable" might constitute, employers sometimes concentrate on the disruption to their business. They’re wrong to do so (in law anyway). The real issue is whether or not each absence is because of a genuinely unforeseeable emergency.
An employment has recently heard the case of Naisbett v Npower, which dealt with a complaint that an employee had been less favourably treated because she had invoked the right to time of for unforeseen circumstances involving a dependent. In this case the employee was not dismissed, but she was subjected to a form of discipline procedure, which she successfully argued was a detriment.
Ms Naisbett worked for Npower Ltd. Her usual hours of work were 9am to 5pm between Monday and Thursday. Ms Naisbett has a child who was three years old at the time of the events complained of. The child attended nursery on the days she worked. Ms Naisbett only received limited childcare help from her partner because he worked away from home and from her parents because they ran a business. In general, if the child was too ill to attend the nursery, Ms Naisbett had to look after him.
Between March 2011 and February 2012, Ms Naisbett had seven days' absence (five one-day absences and one two-day absence). On each occasion, she invoked the employer's policy on time off for dependants and was granted the emergency absence. She followed the employer's procedure (telephoning on the morning of each day's absence). Npower accepted that the reason for her absence was entirely due to her son being ill and not able to attend the nursery, and the absence of anyone else to look after him.
In February 2012, Npower invited Ms Naisbett to a "formal capability meeting" for "non-medical absence". Before this, she had not been given any indication of any concerns. The outcome of the meeting was a letter giving her what the employer described as a "first written notification of concern" and threatening her with dismissal if she had "further unsatisfactory attendance due to time off for dependants". Ms Naisbett complained that she had been subjected to a detriment for exercising her right to time off for dependants.
Npower said that its "first written notification of concern" did not amount to a warning and could not be a detriment. But the letter was identical to a written warning under the employer's disciplinary procedure and Ms Naisbett was left in no doubt that, if her attendance did not improve, further action, including dismissal, could be taken.
Rejecting the employer’s argument,the employment tribunal relied on the EAT guidance in Qua v John Ford Morrison Solicitors . In that case the EAT said that the employee is not entitled to unlimited time off and the right is to deal with something unforeseen. Once it is known that a child has a medical condition that makes relapses likely, the employee is entitled to reasonable time off work to make longer-term arrangements for care. Where the line should be drawn is a matter to be decided on the facts of each case, with the foreseeability of the absence being key. In determining what is a "reasonable" amount of time off for dependants, disruption or inconvenience to the employer caused by the employee's absence is not a relevant factor.
Applying these principles to this case, the tribunal concluded that, taking all the circumstances into account, the claimant in this case had not taken an unreasonable amount of time off. Ms Naisbett had not suffered any financial loss, but found that the written warning was a detriment because it could be taken into account in the future, for example if the claimant was up for promotion. The tribunal awarded £1,000 to Ms Naisbett for the detriment.
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