02nd February 2017
There is no statutory compassionate leave entitlement or right to bereavement leave except in limited circumstances. However many employers do provide some sort of paid compassionate, bereavement leave or have a compassionate leave policy in place, and the terms of this leave are usually set out in a staff handbook or policies. Before we look at the types of compassionate leave employers typically offer, we will start with the employee’s basic statutory right to unpaid time off for dependants
A right to unpaid time off for dependants
Under Section 57(A) and 57(B) of the Employment Rights Act 1996 employees have the right to take a “reasonable” amount of unpaid time off work to take “necessary” action to deal with particular situations affecting their dependants. This statutory right applies from day one of employment but only applies to employees. Workers, the self-employed, members of the Armed Forces and the police force and certain fishermen are excluded from this statutory right.
The right applies to both male and female employees and there may be occasions where both parents wish to take time off to care for a dependant. The Department for Business, Energy and Industrial Strategy (BEIS) anticipates this and have produced guidance which advises employers to take a “common sense” approach when determining whether this is necessary and reasonable. See BIS: Time off for Dependants: A guide for employers and employees. In September 2014, Acas also published its new Guidance, Managing bereavement in the workplace: a good practice guide.
When can time off be taken?
The legislation provides that the employee is entitled to take reasonable time off where it is necessary to:
- Provide assistance if a defendant fall ill, gives birth, is injured or assaulted.
- To make care arrangements for the provision of care for a dependant who is ill or injured.
- Because of the death of a dependant.
- To deal with unexpected disruption, termination or breakdown of arrangements for the care of the dependant.
- To deal with an unexpected incident which involves the employee’s child during school hours.
In Foster v Cartwright Black Solicitors the Employment Appeal Tribunal (EAT) determined that the right to take time off because of a dependant’s death is only to deal with the logistical matters which arise as a result of a death. These include arranging and attending a funeral and, where appropriate, applying for probate and meeting with probate officers. The EAT emphasised that the right is not a right to compassionate leave.
The BEIS Guidance states that where a dependant’s funeral is overseas, the employer and employee should agree a length of absence which is reasonable in the circumstances.
Who is a dependant?
The legislation defines a “dependant” as a spouse, civil partner, child or parent (but not grandparent) of the employee or a person who lives in the same household as the employee (excluding tenants, lodgers, borders and employees).
What is “reasonable” time off?
Under this legislation employees are only entitled to take a “reasonable” amount of time off. This aspect of the right is the one that is potentially open to most abuse by employees. EAT guidance was provided in the case of Qua v John Morrison Solicitors which suggested that in the vast majority of cases no more than a few hours or, at the most, one or possibly two days would be regarded as reasonable to deal with the particular problem which has arisen. The guidance also stated that the disruption or inconvenience caused to the employer’s business should not be taken in to account. What is a reasonable amount of time off will depend upon the nature of the incident and the employee’s individual circumstances.
What can employees do if they are refused permission to take time off for dependants?
An employee who is refused permission to take time off in accordance with this right or who is treated unfairly for taking it (or seeking to take it) may complain to an Employment Tribunal. If the employee is dismissed for this reason they will have the right to claim an automatically unfair dismissal irrespective of their length of service.
Compassionate Leave Policies
As mentioned above many employers offer more generous compassionate leave than that provided by statute. Five days of paid leave in every 12 month period is average according to the Chartered Institute of Personnel and Development. Some employers will allow casual and agency workers to take paid compassionate leave and they may extend the categories of “close relative” to cover grandparents and in laws.
Most compassionate leave policies will be non-contractual which means the employer can change the terms of the policy without seeking the employee’s agreement. Most policies will also have a discretionary element where additional leave may be granted in certain circumstances. However the employer must exercise that discretion fairly and in a non-discriminatory manner. Some religions have mourning periods longer than 5 days and the employer may be found liable for indirectly discriminating against the employee because of their religion or belief if they unreasonably refuse this request for more time off.
Where compassionate leave is not enough to help the employee through their difficulties a range of other measures can be considered such as unpaid leave, parental leave, flexible working, part time working or working from home.
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