Employment Law Update (October 2008)

Time Off for Dependants ruling helps parents and carers but causes headache for employers

A case decided recently by the Employment Appeal Tribunal has not only clarified but also extended the scope of employees' rights to unpaid Time Off for Dependants (TOFD).  Employers now need to check that the employee has explored all alternatives before refusing time off in situations where the employee's care arrangements have broken down.

The right to unpaid time off for dependants

Employees have a right to take unpaid time off to care for dependants.  The right, introduced in 1999, applies to all employees.  "Dependants" include the employee's:

• Spouse or Civil Partner
• Child;
• Parent; or
• A person who lives in the same household as the employee and is not a lodger.

The situations covered include:

• Illness;
• Death;
• Incident at school;
• Unexpected disruption of care arrangements.

What the case says

The case concerned a situation where an employee's childminder would be unavailable for a day. The childminder told the employee about this two weeks in advance, but the employee was unable to make alternative childcare arrangements and took the day off to look after the child after telling her employer she was doing so.

The Employment Appeal Tribunal said that the disruption of care arrangements was "unexpected" and that, in this case, it was necessary for the employee to take the time off. This was because she had shown that, in spite of her efforts to make alternative arrangements, nobody else could be found to look after her children. It was not relevant that giving the employee time off might cause difficulties for the employer.