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Emergency Time Off Work Rules Posted: 30 Apr 2021 02:57 PM PDT It’s a fact of life that employees may need to take time off work at some point to deal with an emergency. This could be time off work for family reasons or time off for medical reasons, or to attend a medical appointment for themselves or accompanying a dependant. Below we look at what the law says about last minute leave, how emergency absences should be handled by HR, from how much time an employee should be permitted to take to whether they are entitled to be paid for this period.   Employees rights to take emergency time off work The law relating to time off work for emergencies is set out under the Employment Rights Act (ERA) 1996. Under the ERA, an employee is permitted to take a reasonable amount of time off during their working hours so that they may take action that is necessary: To help when a dependant becomes ill, is injured or assaulted, or gives birth To put in place care arrangements for a dependant who is ill or injured Where a dependant passes away Where care arrangements for a dependant are unexpectedly disrupted or terminated Where their child is involved in an incident at school which occurs unexpectedly during school hours.   The law therefore covers a number of unforeseen or emergency scenarios involving a dependant, including compassionate leave where an employee has been recently bereaved, as well as caring for a sick child or adult dependant, or making arrangements for their care. This could cover, for example, where a dependant's care arrangements have broken down, such as a child-minder cancelling at short notice or the child's nursery closing unexpectedly. The statutory provisions also allow an employee to deal with an incident involving their child at school, for example, where a child has been involved in a serious disciplinary matter. The right to take time off work in any one of these emergency scenarios is a right that arises from day one of employment, without any requirement for a minimum length of service.   Giving notice for emergency time off work The right to take time off work in emergencies is not automatic. Even though an employee is not required to provide you with advance notice, as the very nature of an emergency situation makes it unexpected, the right to take dependency leave will only trigger if the employee informs you of the reason for their absence 'as soon as reasonably practicable'. The ERA also requires an employee to tell you how long they expect to be absent from work. If it has not been possible for the employee to notify you of the reason for their absence until after they have returned to work, the absence can still be authorised retrospectively. There is no guidance setting out the circumstances in which an employee will be unable to comply with the statutory notice requirements during their absence, so you may need to keep an open mind, although in most cases the employee ought to be able to notify you within a day or so.   Who is classed as a dependant? A 'dependant' is defined under the ERA as either a spouse, a civil partner, a child or a parent. A dependant can also include a person who lives in the same household as the employee, including a cohabiting and same-sex partner, as well as other relatives or unrelated people living as family in the employee's home. It does not include anyone in a commercial relationship with the employee, such as tenants, lodgers, boarders or a live-in nanny. That said, even though the provisions of the ERA exclude from the definition of a dependant anyone that may be living in the employee's household that they have no close or intimate ties with, if a live-in nanny became incapacitated or suddenly passed away, an employee would still be entitled to take time off to deal with the unexpected disruption or termination of their childcare arrangements. This could also encompass the illness, injury or death of any individual not living in the same household but responsible for the care of a dependant. In the context of certain emergencies, the definition of a dependent additionally extends to anyone the employee cares for, or is otherwise responsible for arranging their care. This is not limited to someone living in the employee's household, but could include, for example, a disabled or elderly family member, friend or even a neighbour.   What is a reasonable amount of time off work? The length of time that an employee is permitted to take off work in emergencies can be one of the most difficult issues when determining their right to dependency leave. The ERA only provides that an employee is permitted to take 'a reasonable amount of time' off work to take any action that is necessary to deal with the emergency in question. In the absence of any statutory definition as to what is 'reasonable', much will depend on the nature of the emergency. For example, the length of time to arrange the provision of care for a dependant who is ill or injured could be limited to just one day, whilst a period of at least one week would be considered more appropriate following the death of a close relative. In the context of bereavement, it is important to bear in mind that employees have a separate statutory right to two weeks off work if a child under the age of 18 dies or is stillborn after 24 weeks of pregnancy. This is called parental bereavement leave.   Is emergency time off work paid? Under the ERA, employees are not statutorily entitled to paid time off work in emergencies, although they will not be required to make up the time as agreed with their employer. The exception to the unpaid leave rule is in the case of parental bereavement leave, where employees who have a 26 week qualifying service period and earn at least £120 per week before tax will be entitled to £151.97 per week or 90% of their average weekly earnings, whichever is lower. Otherwise, many employers will often allow an employee to take any paid annual leave entitlement in emergencies or make contractual provision for short periods of paid emergency leave. However, unless you are prepared to allow an employee to use their annual leave on short notice, or the employee's contract of employment or any relevant workplace policy make express provision for paid leave, the employee will not be entitled to any payment.   Time off for medical appointments The statutory provisions under the ERA will cover an employee for time off to accompany a dependant to an urgent medical appointment when that dependant becomes ill, or is injured or assaulted. It will not cover a situation that an employee knows about in advance, for example, taking a child to a pre-arranged hospital appointment, although the employee may be entitled to take unpaid parental leave instead, subject to providing you with advance notice. In respect of time off work for an employee to attend their own pre-arranged medical appointments, there is again no legal requirement to allow this during working hours, although many employers will make contractual provision to attend a limited number of doctors and dentists appointments or ask the employee to make up the time taken. If the employee’s contract of employment does not expressly provide for time off for appointments, you can insist they attend non-urgent medical appointments in their own time. The exception to this rule is for employees who are expecting a baby, where a pregnant employee can take paid time off to attend antenatal appointments, or the mother's partner can take unpaid time off to attend up to two of these appointments.   Does an employer have to agree to emergency time off work? If an employee requests time off work in an emergency, provided the reason for the request falls squarely within any one of the scenarios permitted under the ERA and they have complied with the notice requirements, either before or after their absence, they can make a complaint to the employment tribunal if you refuse that request. This is because any refusal to allow time off work as provided for by the ERA will be classed as unreasonable. If an unreasonable refusal finding is made, the tribunal will make a declaration to that effect. It can also order you to pay an award of compensation, taking into account any default in refusing to permit time off and any loss sustained by the employee in consequence. It is also worth bearing in mind that where an employee legally takes time off work in an emergency, they must not be subjected to any detriment because of this, including dismissal. If, for example, an employee is disciplined or sacked because they have taken a reasonable amount of time off work to care for their sick child, this will be classed as unfair for which they can again make a complaint to the employment tribunal.   How to manage time off work in emergencies Establishing exactly when and to what extent the right arises to take time off work in an emergency can be tricky. The statutory right under the ERA limits an employee's right to take a 'reasonable amount of time off …in order to take action which is necessary' depending on the circumstances. What constitutes 'reasonable' and 'necessary’ is fact-specific, so emergency absences from work can only usually be dealt with on a case-by-case basis. Still, care must be taken to ensure that your decision-making in authorising or refusing to authorise leave is both reasonable and consistent, in line with previous custom and practice. This will help to ensure that you do not discriminate against or treat employees unfairly in the same or similar circumstances, leaving any refusal decision open to challenge. To avoid confusion or complaint as to how much time off work will be allowed and in precisely what circumstances, it is good practice to have an accessible policy that clearly outlines employee entitlement to paid or unpaid dependency leave. Your policy should also set out what alternatives are available to an employee for emergency or ongoing family situations falling outside the parameters of your policy requirements. These could include using paid annual leave entitlement, taking unpaid parental leave or making a flexible working request. By incorporating a degree of flexibility into any emergency leave arrangements, you can avoid a situation where an employee is effectively prevented from dealing with an unexpected or ongoing critical situation at home, potentially resulting in stress-related sick leave or even the employee's resignation. By providing a flexible and supportive approach, employees are also much more likely to be productive on their return to work, once the emergency is over.   Need assistance? DavidsonMorris’ employment lawyers can help with all aspects of workforce management and . Working closely with our specialist HR colleagues we provide comprehensive guidance on how to approach employee entitlements to minimise legal risk while ensuring commercial goals are achieved and employee engagement is optimised. For help and advice, speak to our experts.   Time off work rules FAQs Can you take time off work for family reasons? By law, employees can take a reasonable amount of time off work to deal with an emergency involving a dependant. The Employment Rights Act 1996 gives a definition of 'dependant' and lists the circumstances that apply to emergency absences. What counts as a family emergency? A family emergency can include caring for either a sick or injured child, spouse, partner or parent. It can also include where a dependant's care arrangements have broken down, such as where the child's nursery closes unexpectedly. Can I take time off work for personal reasons? Time off work can be taken for personal reasons, provided those reasons fall within the Employment Rights Act 1996: time off for dependants. There is no set amount of time though, as it depends on the situation. Can I take time off for a family emergency? ou can take time off for a family emergency, such as when a child or parent becomes ill or following the death of a loved one. Your contract of employment may also provide additional rights to take time off work. Last updated: 30 April 2021

Do You Have to Offer a Redundancy Appeal? Posted: 26 Apr 2021 02:27 PM PDT The redundancy process should be fair at each stage to minimise the risk of tribunal claims. To what extent does this extend to a redundancy appeals procedure? The following guide for employers examines the benefits of providing a right to a redundancy appeal and the procedure that should be followed as a matter of best practice.   Employee rights to appeal redundancy There is no legal obligation on employers to offer employees the right to appeal redundancy. However, affected employees should always be given the opportunity to challenge any proposed selection pool or criteria during the individual consultation process. In addition, ACAS does recommend in its employer guidance that an appeals procedure is implemented for complaints relating to unfair application of selection criteria. As with any dismissal, it is important for an employer to act fairly at all times. This means that when implementing a redundancy procedure, employers must ensure that they are able to justify any decision they take and the manner in which they have reached that decision. When faced with a claim for unfair dismissal, an employment tribunal must consider whether the decision to dismiss was within the range of conduct that a reasonable employer could have adopted. This is known as the band of reasonable responses test, taking into account section 98(4) of the Employment Rights Act (ERA) 1996 which sets out the principles of fairness in any dismissal scenario, and whether the employer acted reasonably or unreasonably. The ERA remains silent on whether or not an appeal should form part of the redundancy procedure, although this question was addressed in the case of Gwynedd Council v Shelly Barratt & Other (2020). Here, the EAT confirmed that there is no set rule that a redundancy dismissal will automatically be regarded as unfair on account of the absence of any appeal procedure. That said, the tribunal did consider the right to appeal a redundancy decision as one of the relevant factors when it assessed the overall fairness of the redundancy process under s.98(4) of the ERA. On the facts of the case, the claimants had an express statutory and contractual right of appeal, the statutory right arising under specific regulations relating to the appointment and dismissal of teachers in a maintained school. It was therefore substantively and procedurally unfair to deny the claimants this right. Still, the judgment in Barratt provides a clear warning for any employer embarking on a redundancy process, that a failure to consider an appeal, even absent an express right, may impact the reasonableness of their decision to dismiss. As a matter of best practice, an employer should therefore not only undertake a fair consultation process and apply fair selection criteria, it should generally also provide employees with a right of appeal. An appeal could be on the grounds that either the employee was unfairly selected for redundancy or that the employer failed to follow a fair redundancy process.   Implementing a redundancy appeal process Even though redundancy appeals can lengthen the time within which you can conclude this difficult process, not to mention the additional cost associated with allowing employees to appeal, there are several advantages to factoring in this additional procedural step — and one which could save you a significant amount of time and cost moving forward. An appeal will offer the employee the opportunity to show that the employer's reason(s) for dismissing them could not be treated as reasonable and, in turn, it will afford the employer another opportunity to look at the fairness of their decision. There could be a number of factors that may have been overlooked by the employer that, when put on notice of such matters, would mean they would potentially reach a different decision. This could be, for example, a failure to consider suitable alternative employment, or applying a selection criteria which has inadvertently and indirectly discriminated against a particular employee. By offering employees the right to appeal their redundancy may not only make the overall procedure more "fair", it can also help you to identify and rectify those cases where issues of procedural fairness have been overlooked or errors have been made. The ACAS guidance on handling large-scale redundancies recommends setting up an appeals procedure to give employees who feel they have been unfairly selected for redundancy an opportunity to argue their case. The chance to reconsider and correct any potentially unfair decision will therefore reduce the risk of any tribunal claims and the cost of defending these. The appeal process will also give you advance notice of what tribunal claims may be brought, together with the opportunity to assess the level of risk associated with such claims.   Redundancy appeals procedure Having selected an employee for redundancy, you must notify them of your decision to terminate their employment in writing. If you decide to offer the right to appeal, you should also inform the employee of this right and explain the procedure for appealing your decision to dismiss. Putting this procedure in writing can be key to ensuring that all employees are treated consistently and in demonstrating to a tribunal the fairness of your approach. The following guide to redundancy appeals can be used as a basic template, although the manner in which you conduct any appeals will often depend on the size of your business, the number of redundancies being made and the resources available to you: Step 1 Any employee who feels they have been unfairly selected for redundancy, or there was a problem with the redundancy process, and wishes to challenge your decision should be invited to set out their reasons in writing. They should be given a reasonable timescale to appeal. In accordance with ACAS guidance, it is said that a period of 5 days from the date of receiving their redundancy notice could be considered reasonable. Step 2 Having submitted their grounds of appeal in writing, the employee should be invited to an appeal hearing as soon as possible. They should also be allowed to be accompanied by a work colleague or employee representative. The appeal hearing should be conducted by a senior member of staff not involved in the original decision-making process. If this is not possible, the person leading the appeal should be impartial. If resources allow, you may need to consider instructing an external independent HR consultant. Step 3 After the appeal hearing has taken place, giving the employee a full opportunity to set out their grounds, a decision should be reached without unreasonable delay to either refuse or uphold the appeal. You should put your final decision in writing to the employee. If their appeal is upheld, but their employment has already come to an end, they should be reinstated without any break in their continuity of service. You may need to pay any arrears of salary between the end of the notice period and the time you reinstate them, although the employee should be made aware that in upholding their appeal they will be required to repay any redundancy payment. If their redundancy notice period has not yet ended, the contract of employment should continue as though the employee had not been selected for redundancy in the first place. If the appeal is refused, then the redundancy remains in force. This means the dismissal, notice period and any entitlement to redundancy pay will continue as before. Step 4 If an employee is successful in any appeal, this will often mean another employee will need to be made redundant in their place. This could be a very tricky situation, especially if any affected employees were previously told they were safe from redundancy selection. You should therefore prepare for how to handle this situation sensitively, correcting any issues within the redundancy process and carrying out a fair selection. In some cases, you may need to start the entire redundancy process all over again to ensure you get this right.   Getting the appeal process wrong If you provide a contractual right to a redundancy appeal procedure but you fail to honour this right, denying an employee the opportunity to challenge any decision to dismiss could be classed by a tribunal as substantively and procedurally unfair. Any attempt to circumvent a clear contractual right could result in a costly unfair dismissal claim. It's also important to ensure that where you do offer, and honour, any right to an appeals procedure, that this is followed fairly and consistently for all affected employees. This means that you cannot discriminate between who is allowed to appeal and who isn't, or differ in the way that you conduct each appeal with different employees. Again, this could result in you defending a claim before the tribunal for procedural unfairness. If you fail to follow your own appeals procedure, that is probably going to make the dismissal unfair. There is always the argument that given the opportunity to appeal, or had a fair appeals procedure been followed, this would have made no difference in any event and that the employee would still have been dismissed. However, if your redundancy procedures are regarded by a tribunal as fundamentally flawed, any award of damages can still be significant, regardless of the potential outcome had you acted fairly.   Best practice advice By having a redundancy appeals procedure in place, this can help employees to feel more reassured that any decision to dismiss is fair or, at the very least, you will be open to listening to any concerns that they may raise as to whether the decision was fairly reached. However, the mere existence of an appeals procedure is not, in itself, enough. This procedure must be complied with and applied consistently across the board. The procedure must also be followed in a way that is sympathetic and sensitive to the stress involved for any affected employees at such a difficult time. Any lack of understanding is highly likely to create hostility that can often result in a greater risk of litigation, regardless of the merits of any allegations of substantive or procedural unfairness. If you're contemplating making redundancies within your organisation and are looking for the best way to adopt a fair procedure, including the provision of a redundancy appeals process, you should seek expert advice from an employment law specialist. In this way, you can feel confident that the way in which you approach any redundancy situation will maximise the prospects of your final decision(s) being construed as fair, and minimise the risk of having to defend any claim(s) before an employment tribunal. Your legal advisor can help you to navigate the complexities of the rules relating to redundancy, and show you how to use a redundancy appeals process to your advantage.   Need assistance? DavidsonMorris are experienced legal advisers to employers on all aspects of redundancy and employee dismissals. Our employment law specialists work closely with our HR adviser colleagues, providing a holistic service to employers managing employee redundancies, advising on procedural matters and employee entitlements to reduce the risk of legal complaints. We also have specific expertise on the use of settlement agreements during the redundancy process. For help and advice with a specific issue, speak to our experts.   Redundancy appeal FAQs On what grounds can you appeal a redundancy? If your employer offers you the right to appeal a redundancy decision, this will usually be on the grounds that either you were unfairly selected for redundancy or that the employer failed to follow a fair redundancy process. Do employees have the right to appeal redundancy? There is usually no automatic right to appeal a redundancy decision, although there may be an express contractual right set out under your contract of employment. There may also be a statutory appeals procedure in the context of certain professions. What happens if I appeal redundancy? If you appeal a redundancy you'll usually be required to set out your grounds of appeal in writing and attend an appeal hearing. You should then be notified in writing of the employer's decision to uphold or refuse your appeal. Who should hear a redundancy appeal? Ideally, a redundancy appeal should be heard by someone other than the original decision-maker or anyone directly involved with the redundancy process. If this isn't possible, the appeal should be led by someone who is impartial or independent. Last updated: 26 April 2021

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