Question
We have an employee who has worked for us for just over a year. Over the course of the year the employee has had a high number of intermittent absences because of her son being unwell. We wish to be sympathetic to the employee but her absence is causing us difficulty. Can we take disciplinary action if she continues to need time off?
Answer
It’s possible that your employee’s absences could be classed as time off for dependants (TOFD). TOFD is a statutory right that allows employees to take time off to deal with a difficult situation, such as an emergency, related to a dependant. The right is not based on length of service and is available from the first day of employment.
While the right is generally exercised by parents who need time off to manage situations involving their children, as is the case here, ‘dependant’ can also cover spouses, civil partners, parents or anyone who relies on the employee for assistance when they are ill or injured.
The legislation states that the time off can only be taken in certain circumstances, namely where it is necessary:
- to provide assistance if a dependant falls ill, gives birth, is injured or assaulted;
- to make care arrangements for the provision of care for a dependant who is ill or injured;
- in consequence of the death of a dependant;
- to deal with the unexpected disruption, termination or breakdown of arrangements for the care of a dependant; or
- to deal with an unexpected incident which involves the employee’s child during school (or another educational establishment’s) hours.
It’s worth noting that TOFD does not give employees the right to take time off to provide the care themselves, but instead should be used to make arrangements for care. Therefore, in your case, the employee can’t rely on TOFD if she needs to stay at home to look after her child, and if her son can’t be in nursery then taking TOFD should be used to make alternative arrangements before she comes back to work. That isn’t always an easy distinction to make, however.
The entitlement is also only to a ‘reasonable’ amount of time off, but unfortunately the legislation doesn’t specify what that means, and as such there is no specified limit to the number of days that can be taken or the amount of time that can be taken off in any instance of TOFD.
That is the trickiest aspect of the statutory regime, as it’s difficult for employers to know when they can address the issue. Moreover, taking disciplinary action against an employee for taking TOFD can be risky, as the legislation provides protection for employees against both detriment and dismissal.
For example, in one case, an employee was able to claim compensation of £1,000 when her employer issued a ‘letter of concern’ in relation to her time off, as the tribunal classed even such informal action as a detriment. In addition, a dismissal for taking TOFD will generally be automatically unfair, and an employee does not need two years’ service to bring a claim of unfair dismissal on that ground.
Employers have previously tried to defend such action by explaining the impact that the absences were having on their organisations, but the case law makes it clear that disruption or inconvenience to the employer’s business will not justify taking disciplinary action in relation to TOFD.
One factor that can be helpful to employers is that the right is to unpaid time off. While it is open to employers to pay employees for the time taken, it might act as a deterrent, or at least limit the time taken, if employees won’t be paid. Of course, even that may be of limited use, as an employee is unlikely to ignore an emergency situation involving a dependant simply because they won’t be paid.
Outside of that, TOFD is an area of employment law with limited recourse for employers, and it may be difficult to prevent your employee from taking the time off if she is doing so in line with the rules. There may come a time when the absence is having such an impact on your organisation that it outweighs the risk of taking formal action, but in assessing that balance it is worth keeping in mind the potential compensation available in a claim and the difficulty of defending such a claim.
If you have any questions on any of the issues raised in the above article, please contact Seanpaul McCahill.