The Right to Time Off Work

Friday 20 May 2011

Many employees are unaware that they have a statutory right to take reasonable time off work without pay in cases of emergency.

Sections 57A and 57B of the Employment Rights Act 1996 (ERA) permit employees to take reasonable unpaid leave to look after dependants in certain prescribed circumstances, such as the employee’s dependant is ill, has given birth or has been injured or assaulted. Time off can also be taken to arrange for the provision of child care following an unexpected disruption in the employee’s care arrangements or to deal with problems that may arise at school. The right also applies where the employee has to deal with the death of a dependant.

The statutory right applies to employees only, and there is no qualifying period of service before they can exercise these rights.

An employee can only take unpaid leave from work if the situation falls into one of the prescribed categories with the ERA. Any other emergency requiring the employee to take unforeseen time off work is not covered by the statutory right and therefore, any leave permitted by the employer would be on a discretionary basis only.

Employees need to understand that the right to unpaid time off work only applies to unforeseen and unexpected emergencies. The purpose of the legislation is to allow them time off to put in place long term arrangements, such as the provision of child care. The right does not apply to pre-planned events and should not be used to obtain regular time off work to deal with matters that can be organised in advance (such as hospital appointments) when taking annual leave may be more appropriate.

A dependent must be a spouse, civil partner, child or parent of the employee, or a person who lives in the same household as the employee (but is not an employee, tenant, lodger or boarder) before an employee can exercise this right.  The definition of a dependant also includes those people who reasonably rely on the employee for assistance or to make arrangements for the provision of care.

If an employee takes time off to deal with an emergency in their personal life, they have an obligation to tell their employer as soon as possible the reason for their absence and how long they expect to be absent from work.  Whilst a notification does not have to be in writing, the employee does need to give their employer enough information for them to determine whether the employee is eligible to take unpaid time off in accordance with the provisions of the ERA. If the employer believes that the employee has abused the statutory right to time off work, then they have the right to consider the employee’s behaviour as misconduct and deal with them via the disciplinary procedure.

Employers need to be wary about refusing a reasonable request for time off work in accordance with the statutory provisions.  If an Employment Tribunal finds that a request for unpaid leave has been unnecessarily refused, it can make a declaration to that effect and award the employee a payment of compensation that it considers to be just and equitable in light of the employer’s default.