Emergency Domestics

The EAT have now resolved in RBS v Harrison what has been for some time a conundrum for Employment Lawyers and their clients.

An Employee under Section 57a Employment Rights Act 1996 (“ERA”) is entitled to reasonable and necessary time off for domestic emergencies during working hours when (amongst other reasons) there is an unexpected disruption to, or termination of, the care of a dependent. Dependents being a Spouse, Civil Partner, A Child, A Parent or a person who lives with the employee other than a boarder, tenant or employee.

The main question being asked was whether this only refers to last minute unavailability of care or emergencies and so the Court had to consider the statutory meaning of ‘necessary’ and ‘unexpected’ in accordance with Section 57a(1) ERA.

In this case Mrs Harrison had been notified two weeks prior of the unavailability of a childminder and so it was argued on behalf of RBS that this was not unexpected and so she was not entitled to take time off; when disciplined for doing so she claimed that she had suffered a detriment contrary to the Act.

The EAT stated that the passage of time between the employees discovery of the forthcoming disruption of care arrangements and the disruption taking effect was to be considered as part of the question as to whether it was necessary to for an employee to take the time off and they further held that the word unexpected does not involve a time element. Parliament had not seen fit to insert the words sudden or in emergency into Section 57A (1) (d) ERA and so therefore the argument put forward by RBS failed.

The message to Employers here is clear – a certain degree of leniency is always required where the care of a dependent breaks down, or there is another domestic incident that falls within the legislation. The Employment Tribunals are prepared to take a hard line with Employers when the legislation is not followed or the Employer wishes to adopt sharp practices. The purpose of the legislation is to provide flexible and family friendly workplaces and this case certainly proves that point.

On a side note, where the care involves the care of a disabled dependent this might also in light of recent case law lead to a claim for Disability Discrimination and advice should be taken immediately when faced with these issues.

Advice can be sought on 0870 756 2929 or gda@hrlegalpartners.com