Unexpected emergencies do not mean sudden crises
Under S.57A(1)(d) of the Employment Rights Act 1996 (ERA 1996), an employee has the right, subject to certain notification requirements, to take a reasonable amount of time off work to take action which is necessary because of the unexpected disruption or termination of arrangements for the care of a dependant. An employee also has the right not to be subjected to any detriment because of exercising the statutory right to take time off.
On 8 December 2006 Ms Harrison was told that her childminder was unavailable for 22 December 2006. She did all she could to make alternative care arrangements but was unsuccessful. On 13 December 2006 she asked her employer for the day off, exercising the statutory right provided for under S.57A(1)(d) ERA 1996 because of the unexpected disruption. However, on 20 December 2006, the employer refused and subsequently disciplined her when she stayed at home to look after her children. A tribunal granted her a declaration that she had been subjected to a detriment for taking time off.
The employer appealed arguing that that the statututory right only applied to true emergencies and the circumstances Ms Harrison found herself in could not be described as ‘unexpected’ as she knew about the problem 14 days beforehand.
The EAT rejected the appeal. The EAT held that that the passage of time between the employee’s discovery of the forthcoming disruption of care arrangements and that disruption taking effect was to be considered as part of the question whether it was ‘necessary’ for an employee to take the take off. In this case, Ms Harrison had tried her best to make alternative arrangements but could not do so. There was therefore no question that the time off was necessary. As to the issue of ‘unexpected’ the word does not involve a time element. There was no warrant for the insertion of the words “sudden” or “in emergency” into s.57A(1)(d).