I have an employee who has only just started with me this week - I haven't even issued her with a contract of employment yet! She is employed as a cleaner in our shop for 2 hours a day. Today she phoned up and left a message to say that she was unable to come in to work as she had to look after her poorly child. She has said she will probably be back at work tomorrow. I would like to tell her not to bother coming back to work as she has shown little commitment to the job in failing to turn up in the first week. What notice do I have to give her?

You should not dismiss this employee due to her unexpected absence to look after her sick child. She would be entitled to claim automatic unfair dismissal against you should you do so, even though she has been working for you for less than a week. She would succeed in her claim if the reason for the dismissal was due to this absence.

Every employee is entitled to take "emergency time off for dependants". The right is to unpaid leave and therefore there is no obligation to pay this employee for the day she does not work.

Your cleaner is entitled to take a reasonable amount of time off work in order to either look after the child in the short term, or arrange longer term care arrangements for the child, should she be ill for a longer period. What is reasonable depends upon the individual circumstances of each case and the law does not provide any guidance on this. The nature of the incident, the closeness of the relationship between the employee and the dependant and the availability of another person to assist are all relevant factors. Furthermore, as an employer you should always take account of the employee's individual circumstances. The fact that this absence has caused you inconvenience is not relevant to whether the time off was reasonable. However, the right is to time off in an emergency - your cleaner is not entitled to take the day off work every time her child is poorly. The law grants her the right so that she has time to make arrangements for the child's care, not so that she can take care of the child herself throughout the period of the child's sickness.

Your employee is under no obligation to provide evidence of the child's illness. Clearly, if this employee repeatedly requests time off in similar circumstances, then you will wish to investigate the absences to try and prevent your employee's abuse of this right. If there is evidence that the requests are not genuine, then it would be appropriate to take action against this employee under your disciplinary policy.

In this case, should your cleaner return to work tomorrow, you should not dismiss her for the reasons outlined above, nor should you take any action against her (such as a warning -whether formal or informal). Otherwise, she could bring a claim to the Employment Tribunal alleging that she has suffered a detriment for having taken emergency time off.

This is yet another example of a situation in which an employer must ensure that he understands the background to any set of facts before taking any action against his employees.

For more information on employment law and HR services, please contact Kimbra Welch on kimbra.welch@harveyingram.com or call 0116 257 6165.