Time Off for Emergency Child Care – Unimplemented Policy Wasn’t Much Use

In Clarke v Credit Resource Solutions, an Employment Tribunal ruled that an employee had been subjected to a detriment and unfairly dismissed for taking a reasonable amount of time off work to make emergency childcare arrangements.

In 1999, the Labour government introduced the right of employees to take a reasonable amount of unpaid time off work to deal with certain emergency situations affecting their dependants, such as the unexpected disruption of childcare arrangements. Although it has not generated a huge amount of case law, the right gives an employee an effective remedy in the right circumstances. An employee denied time off or penalised for having taken it may bring an unlawful detriment claim. Also, an employee dismissed for exercising may be able to claim unfair dismissal - even if he or she has been employed for less than a year.

Mr Clarke was employed by CRS for nine months. He and his wife both worked in the company’s call centre. Normally, Mrs Clarke’s mother looked after the couple’s small children whilst they were at work. One morning as they were driving over to drop the children off, they received a phone call from Mrs Clarke’s mother to say that she wasn’t very well and couldn’t look after the children that day. Mr and Mrs Clarke agreed that as Mrs Clarke’s shift started one hour earlier than Mr Clarke’s, he would drop Mrs Clarke at work and then make arrangements for another relative to take the children. Having done this he went into work, arriving half an hour late for his shift. He then and subsequently refused to sign a “late form” acknowledging that he had been late and agreeing to the deduction of one hour’s salary at the end of the month. When such a deduction was made he kicked up a fuss. Eventually, a disciplinary hearing was held and Mr Clarke was dismissed for gross misconduct.

The Employment Tribunal upheld Mr Clarke’s claims. It found both that he had suffered a detriment (the deduction from his salary and being pressurised to sign the late form) and that he had been unfairly dismissed for exercising his right to take time off to make emergency childcare arrangements. It awarded him more that £4,600.

A couple of more general points about this case are worth noting. Firstly, the case shows the danger of introducing a new policy – in this case, to deal with lateness – without giving proper consideration as to how the policy will mesh with employees’ statutory rights. Secondly, there is simply no point in having a policy in a staff handbook that is left on a shelf to gather dust. Here, CRS in fact had a time off for dependants policy as part of what was described as a "very comprehensive" staff handbook but none of the witnesses called on CRS’ behalf seemed to be aware of this. It is vital that managers and supervisors are properly trained as to the terms and implications of a company’s employment policies and procedures.

If you would like to know more, please contact Nick Crook or Gareth Pobjoy.

Filed: 07/07/2011 16:50:48