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Time off to Care for Dependants - “Associative” Disability Discrimination - Expert Comments

David Reid
10th Oct 2008

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.

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.

 

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 , clarify the extent of carers’ rights to take time off in relation to caring for disabled dependants. During these proceedings “Dependant” in the Employment Rights Act has been defined as 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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