Taking time off work to care for someone or to care for a child who has suffered a brain injury

Dated: 15/01/2013

Taking time off work in an emergency to care for someone

Below you will find information regarding your rights as an employee should you need to take time off to care for someone who has received a head injury.

Most employees have the right to take a reasonable amount of unpaid time off work where this is necessary in order to deal with a situation affecting a dependant who is that employee’s spouse, civil partner, child or parent living in the same household. The relevant dependant must reasonably rely on the employee for assistance or to make arrangements to provide care. The right to take a reasonable amount of unpaid time off work where necessary applies in the following circumstances:

  1. To provide assistance if the dependant you are caring for becomes ill, gives birth, is injured or assaulted. This right only allows you to take off such time as is reasonably necessary to enable you to deal with an immediate crisis of illness or injury. For example, this right does not extend to allow you to take time off to attend planned medical appointments, however you might be able to request time off work under the parental leave provisions for this (see below)
  2. To arrange for care for a dependant who is ill or injured. For example, you have the right to take time off in order to make arrangements to employ a temporary carer or take a sick child to stay with relatives. This is not a general right to take additional time off to care for the dependant yourself, but you may be able to make a flexible working request in order to make more permanent caring arrangements (see above).
  3. To deal with an unexpected disruption, end or breakdown of arrangements for the care of a dependant. For example, if the person who usually cares for your dependant suddenly becomes ill.
  4. To deal with the death of a dependant. This is not a right for compassionate leave but is designed to allow time to deal with resulting logistical issues, for example arranging for and attending the funeral.
  5. To deal with an unexpected incident involving your child during school hours. If you want to take time off in one of the above situations then you must tell your employer as soon as possible the reason for the absence and how long you expect to be away from work. If an employer refuses permission for an employee to take time off in the above circumstances, or dismisses the employee or subjects the employee to a detriment because they took (or tried to take) time off under the above rules, the employee has the right to make a claim to an employment tribunal.

If the employee is successful in their claim, the employment tribunal can make an order that the employer should pay the employee compensation or, if the employee has been dismissed, order that they should get their job back. Any claim must be submitted to the employment tribunal within three months less one day from the earliest relevant date (for example, the date the employer refused the employee to take unpaid leave).

If you want to take time off in a situation which does not fall into one of the categories above, you do not have a statutory right to time off but you may be able to take unpaid leave if your employer agrees to this.

Taking time off work to care for a child

Below you will find information regarding your rights as an employee should you need to take time off to care a child who has received a head injury.

If you have been employed for a year or longer you may be able to take unpaid flexible leave in order to care for your child or a child you have parental responsibility for, for example a child you have adopted or have secured a surrogacy or guardian arrangement for. Reasons why you might want to take this leave might include, for example, accompanying the child during a stay in hospital, finding new schools or settling the child into new childcare arrangements.

There is more guidance on what situations might be relevant on the government’s Business Link website at www.businesslink.gov.uk. Under this scheme you have the right to take up to 13 weeks of unpaid leave. If the child is entitled to disability living allowance you can take up to 18 weeks. Under the statutory scheme you cannot take more than four weeks leave in one year, however an employer may agree to a scheme with different rules from the statutory scheme.

If you want to take the leave you must do this:

  • Before the child’s 5th birthday; or
  • If the child is adopted, before the 5th anniversary of the date of placement; or
  • If the child is entitled to a disability living allowance, before the child’s 18th birthday.

While you are on leave you do not generally have the right to be paid your usual salary but you should retain most of the same employment rights that you would have done if you were still at work. If you have been absent for four weeks or less you also have the right to return to your old job when you come back from leave, or, if you have been absent for more than four weeks, a suitable alternative job on similar terms as your old job.

If you want to take leave under this scheme you must provide your employer with evidence you are entitled to take this leave (for example, evidence you are the child’s guardian or that the child is entitled to disability living allowance) and give at least 21 days’ notice to your employer of how long you plan to be absent from work. Unless you are asking to take leave immediately upon the birth of a child, or upon the placement of a child for adoption, your employer can ask you to postpone the leave for up to six months if it considers that the operation of its business would be unduly disrupted for you to take the leave when you initially ask to. If your employer dismisses you, unreasonably postpones the leave, prevents (or attempts to prevent) you from taking the leave or treats you less favourably because you tried to take the leave, you may be able to make a claim to an employment tribunal.

If you are successful in your claim, the employment tribunal can make an order that the employer should pay you compensation.

If you have been dismissed, the tribunal can also order that you should be able to return to your old job. Any claim must be submitted within three months less one day from the earliest relevant event, for example the date of any dismissal.


Disclaimer - Information contained on this website shall not be construed as legal advice and information is only offered for general advice purposes only based on the current law when the information was first displayed on this website. You should always seek advice from an appropriately qualified solicitor on any specific legal issue. Calls to or from our legal helpline may be recorded for training and monitoring purposes.

External links are provided for your convenience, but they are beyond the control of Brain Injury Experts and no representation is made as to their content. Use or reliance on any external links and the content thereon is provided at your own risk. Full terms of use...