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Do staff have rights for taking emergency carers leave when they return after maternity?

Do staff have rights for taking emergency carers leave when they return after maternity?
15 January 2011

All employees, irrespective of their length of service have the right to take a “reasonable” amount of unpaid time off work to take “necessary” action to deal with particular situations affecting their dependents. This right is set out in section 57A and 57B of the Employments Rights Act 1996.


Unpaid time off can be taken to provide assistance if a dependant:-


·       falls ill;

·       gives birth;

·       is injured or assaulted;  or


·       to make care arrangements for the provision of care for a dependent who is ill or injured;

·       to deal with logistical matters resulting from the death of a dependent;

·       to deal with the unexpected disruption, termination or breakdown of arrangements for the care of a dependent; or

·       to deal with an unexpected incident which involves the employee’s child during school hours.


The statutory right does not apply to planned time off to care for dependents, for example a planned medical appointment.


A “dependent” is a spouse, civil partner, child or parent or a person who lives in the same household as the employee (excluding tenants, lodgers etc). The right to reasonable time off to take action which is necessary will depend on the circumstances of the individual case.  Factors that should be taken into consideration are :-


  • the closeness of the relationship between the employee and the particular dependant; and
  • the extent to which anyone else was available to “help out” will be considered.


What is considered “reasonable” time off will depend on the nature of the incident and the individual circumstances of the employee.


The right to time off only applies if the employee tells the employer the reason for the absence as soon as reasonably practicable, and how long they expect to be away from work (unless it is not reasonably practicable to tell the employer the reason for the absence until they return to work). There is no requirement for an employee to produce any evidence of the need to take time off but an employer can request this evidence if it has reasonable grounds to make the request and does not act in a discriminatory manner.


If an employee is refused the right to take time off or is subjected to a detriment for requesting or taking time off, they can complain to the employment tribunal. If an employee is dismissed for taking time off they can make a claim for unfair dismissal, and there is no requirement for one years continuous service.



Right to request flexible working

Carers also have the right to request flexible working arrangements. This right currently applies to changing work arrangements to care for a child under the age of 17 or an adult. (Note this will be extended to parents with children under 18 from April 2011) There is a statutory request procedure set out and the employer must consider the application in line with the statutory provisions. There are a limited number of grounds on which the employer can refuse the request.

While this does not provide a right to time off as such, the flexible working legislation may be used to request a variation of the time, hours or place of work, and provides a statutory framework for considering that request. An employee can request compressed hours, term-time working, staggered hours, flexi-time and homeworking.


To be eligible, the employee must have 26 weeks continuous employment at the date the application is made and have not made another request in the previous 12 months. The request must be to care for a child under 17 (or under 18 if the child is disabled) and the employee must have responsibility to care for that child. If the request is to care for an adult the care must be for their spouse, partner or civil partner, or other relative, or someone who lives at the same address.


The employer is entitled to refuse the request for flexible working provided it bases its decision on the facts and refers to one of the prescribed statutory reasons, these reasons include (among others): an inability to re-organise work among existing staff, the burden of additional costs, and detrimental impact on performance.


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