Tribunal rules on dependency leave

In what may be the first case to examine the legal right to dependency leave the Employment Appeal Tribunal (EAT) has set down a series of questions which must be addressed when an employee alleges that an employer has refused time off.

When Jenessa Qua was dismissed she could not use unfair dismissal law because she had been with the employer for less than a year. Consequently she decided to try to prove that she had been dismissed for exercising her right to dependency leave. This would be an automatically unfair dismissal for which there is no qualifying service.

The EAT said the tribunal needs to establish if the time off was taken or requested during working hours and if so how frequently; and whether the employee informed the employer each time of the likely length of the absence.

If the answer is yes to both these questions the tribunal must then clarify whether the time off was necessary to deal with a variety of unexpected or sudden events involving a dependant or to make longer-term arrangements for the care of a dependant and whether the amount of time off was reasonable.

Only if the three questions are answered positively and it was established that the dismissal was on account of dependency leave would a dismissal be automatically unfair.

Qua's claim has been referred back to an employment tribunal to decide whether the dismissal was automatically unfair.