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If you have a family emergency, do you have the right to time off?
In many cases, employees now have the right to take time off work to deal with an emergency involving someone who depends on them.
Your husband, wife, partner, child, parent, or someone living with you as part of your family can all be considered as depending on you. Others who rely solely on you for help in an emergency may also qualify.
A new right to a week’s unpaid Carer’s Leave was expected to be introduced in 2022 for employees - however this was delayed and will now be introduced on 6th April 2024 (see below). Time Off for Dependants - So what counts as an emergency?
An emergency is when someone who depends on you:
- is ill and needs your help
- is involved in an accident or assaulted
- needs you to arrange their longer term care
- needs you to deal with an unexpected disruption or breakdown in care, such as a childminder or nurse failing to turn up
- goes into labour.
You can also take time off if a dependant dies and you need to make funeral arrangements or attend the funeral.
What if I know in advance that the problem is going to arise?
The legal right only covers emergencies. If you know beforehand that you’re going to need time off, you may be able to arrange this with your employer by taking another form of leave. If it’s your child that’s involved, you may be entitled to a period of parental leave.
How much time can I take off?
As long as it takes to deal with the immediate emergency. For example, if your child falls ill, you can take enough time off to deal with their initial needs, such as taking them to the doctor and arranging for their care. But you’ll need to make other arrangements if you want to stay off work longer to care for them yourself.
You can take a ‘reasonable’ amount of time off, but the legislation places no limits on the time off an employee is entitled to; however in the vast majority of cases this should be no more than a few hours or a day or two (it depends on the nature of the problem), to deal with the immediate crisis. In Cortest v O’Toole the Tribunal found that an employee who took a month off to care for her child wasn’t covered by the right to time off for dependants, as the period was too long.
Will I be paid?
There is no legal obligation for your employer to pay you for the time you take off. Your employer may however offer some paid time off for emergencies in your employment contract.
How much notice do I have to give my employer?
You must tell your employer as soon as possible why you’re away from work and how long you expect to be off.
In the 2014 case of Ellis v Ratcliff Palfinger Limited an Employment Tribunal confirmed that Employees are entitled to take a reasonable amount of unpaid time off work to take necessary action to deal with particular situations affecting their dependants. However the right to time off only applies if the employee tells their employer both the reasons for the absence as soon as is reasonably practicable to do so and how long they expect to be away from work.
Mr Ellis took his heavily pregnant partner to hospital at first due to illness on 6 February and then because she had been admitted to give birth on 7 February. The Tribunal found that he had failed to tell his employer the reason for his absence as soon as it was reasonably practical to do so, and he therefore was not automatically unfairly dismissed for exercising this right.
Mr Ellis had failed to telephone his employer at all on 7 February, or attend work, and it was not until the evening of 8 February that he left a message that he wouldn’t be in work on 9 February after receiving a text to contact the office. He claimed his mobile wasn’t charged and he couldn’t remember his employer’s number. He had already received a final written warning because of attendance issues, which was still current.
Can an Employer ‘manage’ your absence if it relates to time off for dependants?
Genuine absence that’s recorded as time off for dependants should not be counted against an employee in any way, unless there is doubt that the request is genuine. In Naisbett v Npower Limited, Ms Naisbett was given a warning for seven days absence relating to time off for dependants (in 12 months) and this amounted to a detriment and the Tribunal awarded her compensation.
Parental Bereavement Leave from 6th April 2020
The new Parental Bereavement (Leave and Pay) Act 2018 was introduced into law on 6th April 2020 (it will also be known as Jack’s Law), in England, Wales and Scotland. It was finally introduced in Northern Ireland on 6th April 2022.
What does this mean?
It will be a new entitlement for bereaved parents of a child, to allow them to be absent from work with pay for up to 2 weeks.
The new rights will be as follows:
- Statutory Parental Bereavement Leave will be available to all employees who are ‘bereaved parents’ (which means they were the primary carer for a child who has died under the age of 18).
- Leave will be available for all employees from Day 1 (there is no minimum service needed).
- Statutory Parental Bereavement Pay will be available to employee’s with 26 weeks continuous employment with their employer (at the week before the week in which the child dies; as long as they are still be employed by the employer on the day on which their child dies) and where their normal weekly earnings in the 8 weeks up to the week before the child’s death are not less than the lower earnings limit for National Insurance contributions purposes.
- This entitlement will also be available to adults with parental responsibilities for children, who are not their birth parents, i.e for adoptive parents, those who are fostering to adopt, legal guardians and most foster parents (except those in short-term fostering arrangements).
- It also applies to parents who have suffered a stillbirth 24 weeks or more into pregnancy.
- Where more than one child dies, the parent will have a statutory entitlement to leave and pay in respect of each child.
- Each parent can take up to two weeks leave for each child.
- The leave must be taken in units of 1 week (it cannot be taken as individual days) – so it can be taken as a single block of 2 weeks, or 2 separate blocks of 1 week at different times.
- The leave can be taken at any time up to 56 weeks from the date of the death of the child. (This timescale is deliberate as, for example, it would allow an employee to take leave at the first anniversary of the child’s death; and the bereavement leave can be added onto to the end of a 52 week maternity leave).
- Bereavement leave can be taken straight away after the death of the child. Employees must tell their employer that their child has died; when they want their lave to start and the amount of leave they wish to take (one or two weeks)
- If this leave is not taken straight away (or all of it is not taken straight away), then employee’s will be required to give 1 week’s notice to their employer that they will be taking this leave. Employers cannot ask employees for a copy of the child’s death certificate.
- To receive Bereavement Pay, parents will be required to give their Employer written notice within 28 days of taking the first period of leave. It should state the date of the child’s death and confirm they meet the conditions to receive paid leave. Statutory Parental Bereavement Pay will be at the same rate as Maternity/Paternity/Shared Parental Pay, which is currently £172.48 per week, increasing to £184.03 from 7th April 2024.
- Parents cannot receive bereavement pay if they are receiving Statutory Sick Pay (SSP).
- It is believed that small firms would be able to reclaim the full cost from the government, with larger firms being able to reclaim approximately 92%.
- This will only apply in England, Wales and Scotland initially (not Northern Ireland).
- The employee’s Employment rights will be maintained before and after the leave, and they should return to the same job on the same terms and conditions.
- The employee must not suffer detriment or discrimination for taking the statutory entitlement, i.e. if they are dismissed because they have taken, or wish to take, bereavement leave, this will be an automatically unfair dismissal (you don’t need 2 years service to claim)
- The government is encouraging Employees to take this statutory right further and provide employees with more than 2 weeks leave; and/or offer full pay for some or all of their absence.
- Government Guidance is available at gov.uk
New - Carers Leave, from 6th April 2024
A new statutory right to a week’s unpaid leave for Carers.
In England, Wales and Scotland, a new right for Employees is introduced for those who have long-term caring responsibilities.
This is a Day 1 right (meaning Employees do not need a certain amount of service at an Employers to qualify). The Leave is intended to allow Employees to take time off to provide, or arrange care, for a dependant with long-term care needs.
Employees will have the right to Carers Leave every 12 months, and the right is to 1 week’s unpaid leave a year (even if the employee has more than 1 dependant they care for).
The week’s leave can be taken in a single block, or in half days or full days that are non-consecutive (a half day is the minimum leave that can be taken), over 12 months.
A ‘Dependant’ is the same as those described in ‘Time off for Dependants’ leave - e.g. a spouse, civil partner, child, parent, household member and any person who “reasonably relies on the employee for care”.
A long-term care need is described as a long-term illness or injury likely to require care for more than 3 months; or a disability (as defined by the Equality Act); or issues related to old age. The legislation does not expressly cover situations such as terminal illness likely to require care for less than 3 months – but Employers can choose to extend the right of Carers Leave in such or similar situations.
How to apply for Carers Leave:
Employees must give notice (not necessarily in writing) saying they are entitled to carers leave (they do not need to provide evidence of their entitlement) and give the dates they are requesting the leave. Employees need to give notice to take the leave:
- Twice as many days as the period of leave requested, or
- 3 days in advance,
- Whichever is the greater.
Employers:
However, an Employer can choose to accept late notice if they wish.
Employers may want to prepare a ‘self-certificate’ of entitlement for staff to take the leave, if they wish.
Employers cannot deny an Employer the right to take Carers Leave, but they can postpone an employee’s request if they reasonably believe the operation of their business will be unduly disrupted. If an Employer postpones the leave, they must allow the employee to take the same length of leave they wanted, starting on a date within a month of the 1st date initially requested.
The Employer, if postponing the leave, must give the employee written notice within 7 days of the original request that they are postponing the leave, explaining the reason for this and giving revised dates for the leave to be taken.
Employers can choose to enhance the right contractually if they wish (by offering more unpaid leave, or offering paid leave). But an employee cannot take both occupational and statutory Carers Leave separately, they can only take the right that is more favourable.
Employees Rights:
Employees will have the right not to be subject to detriment or dismissal because they take, or seek to take, or are likely to take, carers leave. Employees can bring an employment tribunal claim if an Employer unreasonably postpones or prevents, or attempts to prevent, the employee taking this leave. Dismissal of an employee for a reason connected with their taking carer’s leave will be automatically unfair.
During Carers Leave, the employee is entitled to benefit from all their normal terms and conditions (except pay) and has the right to return to work in their original job.
There will be Government Guidance published before 6th April 2024.
New Neonatal Care (Leave and Pay) Act 2023
On 24th May 2023 this Act became law, but it is not expected to take effect across the UK until April 2025 (and in Northern Ireland when Stormont allows). This law creates a new day-one right for employed parents whose new-born baby is admitted to neonatal care. Employed parents will be able to take up to 12 weeks of leave, at a statutory rate, alongside maternity and paternity leave (as relevant).
If you are an Employer and need ongoing professional help with any staff/freelance issues then talk to Lesley at The HR Kiosk (click here) – a Human Resources Consultancy for small businesses – you can retain us for as much time as you need.
Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.
