There are few certainties in life:- taxes, death and the fact that your domestic appliances will wait until the most inconvenient time for you before exploding/leaking/giving up the ghost. Whilst moving house and changing jobs may be two of the most stressful things to deal with in life – waking up and realising that the boiler has packed up is definitely way up there.
The law affords time off for employees to deal with certain emergencies in their home-life, but such situations have so far been limited by Parliament to cover only specific circumstances relating to dependants of the employee, where his/her immediate presence is required to deal with the crisis at hand. But is it reasonable for an employee to expect to receive compassion from his employer when it is unexpectedly raining in his living room? What if the employer’s business may seriously suffer as a result of the employee’s unexpected absence? What if this is the fourth time that such a leak has caused the employee’s absence this month?
Such emergencies may well cause employers as much of a headache as they do the employees.
Statutory right – time off for dependants
UK law provides that any employee (irrespective of length of service) is entitled to take a reasonable amount of unpaid time off during his/her working hours to deal with certain unforeseen situations relating to a dependant. A dependant is defined as being a spouse, child, parent or person who lives in the same household as the employee (other than a tenant, lodger or employee), and in limited situations encompasses any other person who reasonably relies on the employee for care or in emergencies.
The statutory right only applies in order to take action which is necessary:
- n consequence of the death of a dependant. Dependant in this context is limited to a spouse, child, parent or person who lives in the same household as the employee only, and therefore would not cover the death of a grandparent if they did not live with the employee and did not rely on the employee for care;
- to provide assistance when a dependant falls ill, gives birth or is injured or assaulted;
- to make arrangements for the provision of care for a dependant who is ill or injured;
- because of the unexpected disruption of arrangements for the care of the dependant; or
- to deal with an incident involving a child of the employee which occurs unexpectedly whilst the child is at school.
If an employer fails to allow an employee reasonable time off to deal with such matters, or subjects the employee to a detriment because of him taking such time off, the employee has the right to bring a claim for compensation before the employment tribunal.
What amounts to “reasonable time off”, “assistance” and “arrangements” were deliberately kept vague in the legislation, as what is reasonable and what action will be required of the employee in each situation will depend on the facts and cannot be prescribed. Whilst employees have sought to extend the scope of such statutory protection in the case of emergencies, the tribunals have made it clear that the right is limited to urgent action following an unexpected event involving a dependant.
In the case of Forster v Cartwright Black, the Employment Appeal Tribunal examined the scope of this statutory right in the context of the death of a dependant. The EAT held that the statutory protection was aimed at situations where “urgent family reasons…make the immediate presence of the worker indispensable”, and stressed that the employee’s right was to be given a window of protection from detriment to enable him to deal with the situation at hand. It was not intended to be a general right to compassionate leave as a result of bereavement or family crisis, nor was it aimed at giving employees protection in other domestic situations, however stressful or inconvenient they may be.
Many employers deal with time off for emergencies (including non-statutory emergencies such as a broken boiler) in an informal way. Some have non-contractual policies dealing with such situations, but the majority leave these matters to management discretion and would simply turn a blind eye to a day’s absence to deal with a domestic crisis or to attend the funeral of a close friend or non-dependant relative. Many employers would also grant such time off as paid leave (i.e. go beyond the statutory protection mentioned above), as a gesture of goodwill on their part during an upsetting or difficult time for the employee.
But can an employee demand such treatment? Whilst most employers would want to help out their employees at times of crisis, or at the very least identify the obvious employee relations benefit of dealing with such situations compassionately, some employers may not be able to afford such unexpected interruption to their business or voluntarily pay an employee in respect of time when they are away from the office (and which the employer is not legally obliged to pay). Such a discretionary policy may also be the subject of abuse by a wayward employee, as few managers are going to question a request for time off following the alleged death of a grandparent or other close relative, and contrary to many an employees’ belief, plumbers, locksmiths and electricians do make house calls in the evenings and at weekends, and do not simply confine their visits to the middle of the working day!
If a harder line is taken in respect of such domestic emergencies, where such leave is refused or is only granted on the condition that the employee takes it as holiday entitlement or unpaid leave, this may well lead to the employee making that extra effort of telephoning the emergency plumber, or calling in a favour from the next door neighbour. Whilst this may not be the most employee friendly approach, if a discretionary system is being abused or circumstances dictate that the employer’s business may suffer, a more regimented approach may be for the greater good.
The key to either approach (be your organisation as fluffy as a cloud or as tough as old boots) is consistency. If you have a practice of requiring an employee to take such time off, but on the condition that it is taken as holiday or unpaid leave, this will be acceptable and will not amount to a breach of the implied duty of trust and confidence provided that it is applied uniformly in similar situations, and that the approach is understood by all employees throughout your organisation. The employer’s concession in this situation (if the employer wants to present it in this way) would be to allow the employee to take holiday without the requisite notice. If time off is taken without permission, this would amount to a disciplinary offence and could be dealt with in the usual way. Naturally, different emergencies will require different responses, but if one manager in your organisation requires employees to use holiday entitlement to deal with a broken boiler, whereas another allows his report to have the morning off, then you may get into problems. Whilst a stricter approach may not win you the title “Employer of the Year”, commercially it may be the best approach.
What if you do have a more generous, discretionary policy and you fear that it is being abused? Again, consistency of application is the key so as to avoid allegations of breach of trust and confidence or even discrimination. If you fear that the employee is taking advantage of their manager’s good nature, it would be best to treat the employee in the same way as you would an employee with frequent, self-certified sickness absence. Arrange a return to work interview at which the cause for the time off is discussed. Enquire as to the steps that the employee has taken to rectify his domestic problem and even offer to help in some way. As with employees taking “sickies”, if you fear that the employee is abusing his position, the matter should be dealt with through disciplinary channels, where evidence of the reasons for such time off is gathered. The employee should be required to attend a disciplinary hearing if misconduct is suspected, and disciplinary sanctions can be applied in the usual way.
Most managers can relate to a domestic crisis and empathise with an employee’s position, but how time off to deal with it is approached by the employer can, of itself, lead to problems. Whilst all employees would hope that a softer approach be taken in times of domestic emergency, commercially the employer may wish to take a harder line for financial reasons or to prevent abuse. Whichever approach is adopted, the key is consistency of application, to avoid the employee (as well as the boiler) exploding.