One of our employees recently took time off work and did not comply with our absence notification procedures. He did not ring in until almost the end of the shift. It was one of our busiest periods and this created organisational difficulties for us. We wish to treat the matter as taking unauthorised absence and deal with it under our disciplinary procedure. However, he says that he needed the time off to deal with a family emergency. How do I handle it?


Ciara Fulton writes:


Employees have the right to take a “reasonable” amount of time off work in order to deal with unexpected emergencies affecting their dependants and to make any necessary long term arrangements. This right is set out in Article 85A and 85B of the Employment Rights (Northern Ireland) Order 1996. 


What emergencies are covered?
The legislation provides that an employee is entitled to take reasonable time off where it is necessary:

• To provide assistance if a dependant falls ill, gives birth, is injured or assaulted.
• To make longer term care arrangements for the provision of care for a dependant who is ill or is 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.
• To deal with an unexpected incident which involves the employee’s child during school hours.

Significantly, the statutory regime does not apply to time off to care for dependants, for example to take them to a medical appointment. 

An employee is only entitled to take time off for dependants under the statutory provisions if the situation falls within one of those categories listed above. Accordingly, I would suggest that you discuss the matter with the employee concerned, ask why he needed to take the time off. If the reason for his absence is one of those listed above, you should not treat the matter as an unauthorised absence. 


Who is covered?


You might also check whether the dependant is actually a dependant for the purpose of the legislation. A dependant is defined in the legislation as a spouse, civil partner, child or parent of the employee (but not grandparent) or person who lives in the same household as the employee (excluding tenants, lodgers, boarders, employees) or, in certain cases, a person who reasonably relies on the employee to make arrangements for the provision of care. It is only if the person’s relationship with your employee falls into one of those outlined above that he is entitled to take dependant’s leave. 


How much time is 'reasonable'?


I note that in this case, the employee took a full day off work. Unfortunately the legislation does not define what is a “reasonable” amount of time off. This is one aspect of the right that is potentially open to abuse. What is reasonable will usually depend upon the circumstances, the nature of the incident, the closeness of the relationship between the employee and the dependant, the extent to which another person was available to assist and the extent to which the dependant relied upon the employee to make arrangements for the provision of care. Unfortunately disruption or inconvenience to the employer’s business are not matters that may be taken into account. 

While employees are not entitled to an unlimited amount of time off work what is reasonable will depend upon the actual circumstances of the case. Again, you should be able to obtain a better understanding of whether or not the amount of time the employee took off was reasonable once you understand the nature of the relationship and the nature of the incident itself. 


When should I have been told about the emergency?


I note that in this case, the employee did not tell you before taking the time off work that he intended to do so. The legislation provides that an employee must tell their employer as soon as is reasonably practicable of the reason for their absence and how long they expect to be away from work unless it is not reasonably practicable for the employee to tell the employer of the reason for their absence until they return to work. There is no requirement for the notice to be in writing. However, the employee does need to give sufficient information to enable their employer to determine that their time off is pursuant to the statutory right to time off to care for a dependant. 

I note that the employee contacted you on the same working day and before the end of his shift. He explained that they had to take time off to deal with a family emergency. Therefore, he does appear to have satisfied the notification requirements. 


Can I get evidence?


There is no requirement that the employee produce evidence of their need to take time off. However, there is nothing to prevent an employer requesting appropriate evidence provided that:

• You have reasonable grounds to make the request (so as to avoid a breach of the relationship of trust and confidence).

• You do not act in a way that could be viewed as discriminatory or that subjects the employee to a detriment.

If, for example, when you discuss the matter with the employee he explains the emergency was that their dependant needed immediate hospital attention, you may be able to ask for evidence of this. Whether or not you should do so will largely depend upon the information given by the employee in relation to the incident.


Do I have to pay the employee for the time off work?


Finally, the legislation makes it clear that an employer does not have to pay the employee for the time that they took off work. Therefore, you may decide not to pay the employee for the time off. However, any decision in this regard this is subject to any policy that you may have in relation to payment for such absence, which you should check in the first instance. 

In conclusion, my advice would be to meet with the employee concerned, ask him about the circumstances surrounding his taking emergency leave and attempt to ascertain whether:

1. The dependant falls within the definition of dependant as outlined above.
2. There was a genuine emergency as outlined above.
3. He took no longer than reasonably necessary to deal with the emergency or make arrangements for longer term care.
4. He advised you of the emergency as soon as was reasonably practicable.

If these criteria are satisfied then you should advise the employee that his leave will be treated as dependant’s leave and that in those circumstances he will not be paid for the time off work (subject to checking any policy that the Company might have regarding paying the employee for dependant’s leave).