Time off for dependants is one of a number of statutory rights afforded to employees. A recent case, Forster v Cartwright Black Solicitors, examined the scope of this right and the question of how much flexibility an employer has to limit the length of time taken.

Forster worked for a firm of solicitors. During a period of just under one year’s employment, she had over 40 days’ absence. 12 of these days were paid bereavement leave when her father died and, when her mother died around four months later, she initially had five days’ bereavement leave, followed by two weeks’ sick leave for “bereavement reaction”. This was followed by a further two week period certified by her doctor for the same reason.

Cartwright Black Solicitors decided to dismiss Forster on the basis of her most recent period of absence and her absence record generally.

Forster claimed at Tribunal that she had been dismissed in connection with taking time of “in consequence of the death of a dependant” and therefore her dismissal was automatically unfair under the Employment Rights Act 1996. The Tribunal, however, did not find in favour of Forster and held that the time taken off by her after the death of her mother did not fall within the scope of taking time off for dependants and therefore her dismissal was not automatically unfair.

Forster subsequently argued that the amount of time she took off was reasonable in light of the fact that taking time off in consequence of the death of a dependant should not be restricted to just the amount of time needed to make funeral arrangements but should also include the more compassionate side of the death of a dependant. The case went to the Employment Appeal Tribunal (“EAT”).

The EAT was not persuaded by Forster’s argument and upheld the Tribunal’s original decision. They held that being entitled to take time off “in consequence of the death of a dependant” is only really triggered when the time off is taken in order to take immediate and necessary action as a result of the death. The EAT also looked to the EC Parental Leave Directive which referred to time off for dependant care leave being allowed for “urgent family reasons… making the immediate presence of the worker indispensable”. The emphasis in the Directive was therefore clearly based on a more immediate timescale than an ongoing period inclusive of, as Forster argued, the time it takes to come to terms with the death of a dependant, which could be significant.

The EAT did, however, acknowledge that the right to take time off in consequence of the death of a dependant would not be just restricted to making funeral arrangements and attending the funeral. They acknowledged that other arrangements would be necessary, such as applying for probate and registering the death.

This case provides useful guidance for employers who, when dealing with a compassionate matter such as the death of a dependant, may wish to be flexible but do need to take into account the needs of their own business. It is important that any statutory right for any employee has parameters. Many employers have their own compassionate or bereavement leave policy and, in order to emphasise that there should be no overlap with this statutory right, the EAT has recognised that time off for dependants should not be a substitute for compassionate leave.

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