Case Review: “What is a reasonable amount of time to take off to look after children?”
In the recent case of Naisbett v Npower Ltd, an employment tribunal considered the reasonableness of time taken off by an employee to look after her children, with six absences totalling seven days in 12 months.
Employees are allowed to take a “reasonable” amount of time off for dependants, to cover unexpected or sudden events, and to make the necessary “longer-term” arrangements. When deciding what is a “reasonable” amount of time off work, employers tend (understandably) to focus on disruption to their business. However in reality the key issue is whether or not each absence is a genuine and unforeseeable emergency.
In this case Ms Naisbett worked from 9am to 5pm from Monday to Thursday and at the relevant time had a child who was three years old. The child went to nursery, and Miss Naibett’s partner could only offer limited help as he worked away. Furthermore her parents ran two public houses and were not readily available to help. As a result when Ms Naibett’s child was too ill to attend nursery, it fell to her to look after the child at home. Anyone with children will have found themselves in this situation at one point or other – that dreaded knowledge that you will have to take a day off work to look after the poorly child.
In a twelve-year period Ms Naisbett had seven days’ absence from work (five one-day absence and one two-day absence). She followed the employer’s procedure (telephoning on the morning of each day’s absence) and it was accepted that the reason for her absence was entirely sue to her son being ill and an absence of anyone else to look after him.
In February 2012 her employer asked Ms Naisbett, who had no idea her employer was concerned, to attend a “formal capability meeting” for “non-medical absence”.
The outcome of that meeting was what her employer described as a “first written notification of concern” and threatened her with dismissal if she had any “further unsatisfactory attendance due to time off for dependents”. She brought a claim at the employment tribunal that she had suffered a detriment for exercising her right to time off for dependents.
The employer claimed that the “first written notification of concern” did not constitute a warning letter (and therefore by extension Ms Naibett had not suffered any detriment). The employment tribunal rejected this argument, as the wording of the letter was identical to a written warning letter used by the employer, and that Ms Naisbett had been left in no doubt that she might be dismissed if she took more time off.
The employment tribunal concluded, taking all matters of reasonableness and foreseeability into account, that Ms Naisbett had NOT taken an unreasonable amount of time off under section 57A of the Employment Rights Act 1996. Although she had not suffered any financial loss, the written warning could be seen as a detriment and so she was awarded £1,000.