where do you stand?
Published:  23 September, 2011

From day one of employment, all employees have the statutory right to take dependant's leave, providing, of course, that they inform you of their requirement as soon as is reasonably practicable. Its purpose is so they can deal with unexpected emergency situations involving: a spouse; a partner; a child; a parent; a person who lives with them as part of their family; or a person who reasonably relies on them for assistance. Dependants do not include tenants or lodgers living in their family home.

Time off and pay

There are no hard and fast rules on the amount of dependant's leave an employee can take; all the law says is that it must be "reasonable" in the circumstances in other words, sufficient to enable them to cope with the immediate crisis or to make alternative arrangements for dependant care. However, your staff have no statutory right to receive payment during this type of leave, so you can deduct pay where it is granted.

No detriment allowed

That said, the Employment Rights Act 1996 (ERA) states that if the employee a) sticks to the rules on notification and b) provides you with the reason for their absence which must fall within the permitted statutory reasons they shouldn't suffer any "detriment". So, for example, you cannot subject them to disciplinary action as a result of their need for dependant's leave.

But what does this mean in relation to pay? More importantly, how much can you legally deduct?

No childminder

This issue was recently considered in Clarke v Credit Resources 2011. One morning Clarke's childminder let him down and he needed to organise emergency childcare. This caused him to be 30 minutes' late for work. On arrival, his boss told him to sign a "late form". Doing so would lose Clarke an hour's pay, so he refused, but an hour's pay was deducted in any event. Clarke was also disciplined and later dismissed for failing to follow a "reasonable management instruction".

Unfair treatment

Clarke's claim for detriment and automatically unfair dismissal was upheld. The tribunal confirmed he had the absolute right to take dependant's leave, but not to be paid for the time he was away from work; his employer should have only deducted pay "directly equivalent" to the amount of time he was absent that is, 30 minutes, no more.

Set out your employee's right to dependant's leave in a robust policy, which makes it clear that they have no right to be paid during this time. That should limit this type of request.

To avoid disputes, record the exact amount of time taken for dependant's leave on a family emergencies absence form and get the employee to sign it. You then have the evidence needed to deduct the right amount of pay.




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