Retailers be aware of the right to care

Employees who need time off to look after children or older relatives can be hard to accommodate in the busy retail sector. However, there are certain minimum allowances that must be made by law. Dentons partner Mark Hamilton explains employee rights when it comes to caring for dependants

by Mark Hamilton – Mark Hamilton is a partner in Dentons’ Employment and Labour practice.

Is there a legal right to time off to care for relatives?

Yes. Under sections 57A and 57B of the Employment Rights Act 1996, employees are entitled to take a ‘reasonable’ amount of unpaid leave, during working hours, to take ‘necessary action’ to deal with emergency situations involving their dependants. What constitutes ‘reasonable’ and ‘necessary’ is fact-specific, while who is considered a dependant is also defined in the law.

A dependant is normally a spouse, a partner or civil partner, a child, a grandchild or a parent. It can also be anyone who lives in the employee’s house – excluding tenants, lodgers and boarders. There are certain circumstances where others who depend on the employee for care or assistance are also ‘dependants’.

Is this time off paid?

There is no statutory obligation on employers to pay employees for the time they take off to care for dependants. Some employers may choose not to deduct pay as a matter of policy: in this case, it is important to be consistent.

Do part-time or temporary staff have this right too?

The right to take leave to care for dependants applies to all employees. This includes part-time employees, those on temporary contracts, and those on fixed-term contracts. It is a ‘day one’ right so there is no minimum length of service required.

What constitutes an ’emergency’?

When it comes to determining what incidents, illnesses or emergencies entitle a worker to trigger these rights and take leave, things get a little more complicated. The 1996 Act states that employees can take reasonable time off when it is necessary in order to:

Provide assistance when a dependant falls ill, gives birth, is injured or is assaulted.

Make arrangements for the care for a dependant who is ill or injured.

Handle the unexpected disruption or termination of arrangements for the care of a dependant.

Deal with an incident which involves a child of the employee and which occurs unexpectedly in a period during which an educational establishment which the child attends is responsible for him/her.

Additionally, dealing with the consequences of the death of a dependent also qualify as a valid reason.

This list is exhaustive. If an employee is seeking emergency time off for any other reason – for example, to take a dependant to a planned medical appointment – it will not be covered under the statute.  An employer may then wish to refer an employee to any alternative time-off policy.

Is notice required?

Since the nature of time off for dependants is typically to deal with unforeseen circumstances, it is normally not possible for an employee to give much, if any, notice.

However, the employee must tell the employer the reason for the absence as soon as reasonably practicable, and when they expect to return to work.

If you feel the right to take time off is being abused, this should be dealt with through the company’s usual disciplinary procedure. However, approach this with caution, since an employee who is refused permission to take time off for dependants, or who is subjected to a related detriment, could complain to an employment tribunal.

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