Time off to Care for Dependants and

Email Update 34

Time off to Care for Dependants and “Associative” Disability Discrimination

Two recent decisions, one by the European Court and the other by the Employment Appeal Tribunal, have clarified both the extent of protection afforded to carers by the decision of the European Court in the case of Coleman v Attridge and the scope of the right for carers generally to take time off to care for dependants.

Prior to the case of Coleman v Attridge it was unclear whether an employee could be discriminated against by association in relation to their role of carer of a disabled person because he or she required time off from their employment because of their caring duties.

The facts in the Coleman case were that Ms Coleman had a disabled son and she needed to provide him with specialised care. She alleged that she was treated differently by her employer than the parent of a non-disabled child by being refused flexible working (which other employees had been granted), not being allowed to return to the same job she had before going on maternity leave, being subjected to abuse and insulting comments both about her and her child and being told, having been late on a few occasions because of her carer responsibilities, that she would be dismissed if she came to work late again (other employees who were late due to their role in caring for their non-disabled children were similarly threatened). She subsequently accepted “voluntary” redundancy and then claimed constructive dismissal on the basis of her treatment which related to her carer responsibilities.

The European Court decided that the law extended protection to Ms Coleman in these circumstances. The basis of their decision was that the aim of disability discrimination legislation was to prevent discrimination related to disability in its widest sense rather than to simply protect a group of people defined as disabled.

In the recent decision of the Employment Appeal Tribunal in Royal Bank of Scotland plc v Mrs J K Harrison, the tribunal for the first time considered the extent of protection afforded to carers by the time off to care for dependants provisions in the Employment Rights Act. In this case, RBS attempted to argue that the provisions which allowed an employee to take time off to care for a dependant in “unexpected” circumstances should be restricted to situations where the need to take time off arose “suddenly” and in an “emergency”.

The circumstances here were that Mrs Harrison was advised by her childminder on 8 December 2006 that she would not be able to look after her children on 22 December. The Employment Tribunal which heard the case initially found that this development was “unexpected”. Mrs Harrison then tried to find a replacement carer by contacting family members and other childminders and the services she had used in the past. Her husband was unable to provide care as he ran a small business and his sole employee was going to be off on that date.

By 12 December Mrs Harrison had contacted all her potential replacement childminders and had been unsuccessful in finding a substitute. She therefore told her employers on 13 December, that she had a difficulty with childminding and asked for Friday, 22 December off. Her employers did not respond until a week later when she was told on 20 December that her post could not be covered on that date and she could not take the day off. Further she was advised that if she did so her absence would be treated as an unauthorised absence. Mrs Harrison stayed at home on 22 December to look after her children and on 2 February was given a verbal warning, to stay on her file for six months, for having done so. She appealed unsuccessfully against the warning.

The Employment Appeal Tribunal found that the provisions in relation to time off to care for dependants were not in any way restricted by importing the words “suddenly” or in an “emergency” into the legislation to decide whether it is “necessary” that the employee has time off. The EAT stated the word “necessary” does involve a time element, and that the longer the time between the employees learning of the risk of disruption to their arrangements and the time when that risk becomes a fact, the greater the time in which the employee can explore alternative arrangements. If the employee does not take appropriate steps to make alternative arrangements and has had sufficient time to do so, it would be unlikely that the tribunal would find that it was “necessary” for him or her to take the time off. Correspondingly, if the time which has passed between learning of the risk and the risk becoming fact is very short, then it would be easier for the employee to establish that it was necessary to take the time off. The EAT stated there were no hard and fast rules.

The tribunal also stated that the word “unexpected” does not involve a time element. They stated that it is, from the employee’s point of view, unexpected at the moment when the employee learns what is about to happen.

The EAT therefore stated that in looking at the case as a whole, the delay of two weeks between Mrs Harrison learning of the disruption to her arrangements and it being “necessary” for her to take the day off on 22 December does not prevent her circumstances from being covered by the regulations.

The cases of Coleman and Harrison taken together for the first time, clarify the extent of carers’ rights to take time off in relation to caring for disabled dependants in terms of the definition of “dependant” in the Employment Rights Act (being a spouse or civil partner, a child, a parent or a person who lives in the same household as the employee otherwise than by reason of being his employee, tenant, lodger or boarder). The cases make it clear that in relation to employees with such responsibilities where there is an “unexpected” disruption to their arrangements the employer will have to consider carefully whether the employee has advised them in good time of the difficulty and taken reasonable steps to make alternative arrangements. In situations where the employee can establish that they have done so, the employer then has a duty to allow them time off.

An attempt to discipline an employee for taking time off in these circumstances may fall foul of the Disability Discrimination Act 1995 and Maternal and Paternal Leave Regulations 1999 as well as the Employment Rights Act 1996. The EAT made it very clear in their Judgment that this is a right and it is not in any way qualified by considerations of inconvenience or disruption to the employer. While it will be for an Employment Tribunal to decide whether the circumstances fall within the scope of the legislation, employers will now have to undertake a thorough investigation of the circumstances and carefully weigh the information provided to them by an employee before making a decision about a request for time off.

Just Employment Law are well placed to advise employers in such situations as to both their and their employees’ rights and responsibilities.

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