By Client Legal Director, Kate Palka
At some point during an employee’s working life, personal events are going to have an impact on their ability to work as usual. As an employer, having a compassionate leave policy is going to send a strong signal that you recognise this and that you care about their lives and wellbeing.
But the situations when the need for leave arises will almost always be unexpected and needed at short notice, which can be enormously disruptive. So, how generous does an employer need to be, and how can they minimise the impact that unplanned absences can have?
Create a plan and update policies
A starting point is to design a clearly designed plan covering the different types of leave to deal with family and carer obligations, and to clarify the terms of those in your policies. It is also important that HR departments understand the differences between the various types of leave that arise in these situations.
What are the current rules?
“Compassionate” leave is a broad term that does not have a legal meaning in the UK, although it is normally understood to be appropriate when an employee loses a loved one and needs time off to grieve, arrange and attend a funeral. As it stands, you don’t have any legal obligation to offer your staff bereavement leave unless this is for a child or a dependant. Contrast this with both France and Germany, where employees are legally entitled to take a certain number of days off when any member of the family dies – the number of days varying depending on the closeness of the relationship. In France, the leave is paid.
However, many UK employers do offer an entitlement to compassionate leave upon bereavement and include this in their employment contracts. There is flexibility in what can be offered: the standard number of days tends to vary between three to five, but some employers allow for time off on an as-needs basis, recognising that some employees need more time to grieve and make arrangements than others. As well as the number of days and whether pay will be offered, any compassionate leave policy should clarify exactly what the leave is for, how it should be requested and also that there is no sellback scheme for those days (people do ask!).
Parental bereavement leave
If the bereavement involves a child (including a stillborn child) or a dependant, employees have a right to two weeks off (“parental bereavement leave”, introduced in April 2020, also known as “Jack’s law”), and to receive Statutory Parental Bereavement Leave Pay. It is important, therefore, for HR departments to be aware of this increased length of time available to parents.
Emergencies involving dependants or sick relatives
Employers need to be aware that compassionate leave can also be understood to refer to a reasonable amount of time off to look after a dependant or a sick relative. This has been a right offered to UK employees since 1999, where time off is needed to deal with an emergency involving a dependant. The key here is that this leave is to cover emergencies: the right is not designed to allow employees time off for situations that they knew about beforehand and could prepare for, such as a pre-booked hospital appointment or a school inset day; but if they have to suddenly rush an injured relative into hospital, there is a right to request reasonable time off work to do so.
Record leave
There is no requirement to pay an employee when they take the leave and, similarly, there is no legal limit to the number of times an employee can take time off to deal with emergencies, although the Government advises that, “your employer may want to talk to you if they think the time off is affecting your work”. HR departments should put in place a system of recording this time off and being ready to step in before the exercise of the right could become unreasonable, in the context of the needs of the business and the personal circumstances of the employee.
Carer’s Leave Bill
Additionally, in a new development, the Carer’s Leave Bill is currently in the process of being passed into law. The Bill intends to give employees with care responsibilities the right to take one week of unpaid time off work each year to provide for, or arrange for, the care of a dependant who requires long-term care.
Duty of mutual trust and confidence
There has been some case law on this, and it seems clear that an unreasonable refusal to allow any kind of compassionate leave, or to mistreat someone because they have taken it could be a breach of the duty of mutual trust and confidence. Most employers will take a more enlightened view and will regard compassionate leave as a way to contribute to a more positive workplace culture, where employees feel valued and supported, which can in turn improve overall morale and reduce turnover. But it is important to support this by ensuring there are clear policies and procedures for the use of the different types of leave available, and for both parties to understand their rights and responsibilities.
Contact us for help
If you would like any help updating your policies or training your HR team about best practice in this area, you can contact The Legal Director.
