Unpaid Leave: Definitive Guide to Managing Employee Unpaid Leave

Unpaid leave in the UK is when an employee takes time off work and has no legal right to be paid for the time away from work. There is little legislation relating to unpaid leave, however, there are two areas where unpaid leave is protected by law:

  • Caring or parental rights such as parental leave – employees are entitled to 18 weeks of unpaid parental leave for each child and/or adopted child, up to their 18th birthday. Legally, they’re only entitled to four weeks a year for each child, but if you want to let them take more, you can.
  • To carry out public duties, including jury service – employers must allow time off for jury service. Failure to do so could result in a fine for contempt of court. If jury service has come at a particularly bad time, the employee can postpone their service, but they will have to do it eventually.

Outside of this, unpaid leave approval is at the employer’s discretion. Therefore, it is best practice for employers to have a policy which covers unpaid leave so it is clear to everyone what the Company’s stance is on unpaid leave.

Some scenarios where an employee may request unpaid leave from work include:

  • Public duties – employees can request a ‘reasonable’ amount of time to carry out duties if they hold a position such as school governor, local councillor or trade union member.
  • Time off to look after dependants – employees do have an entitlement to take time off to deal with unexpected problems with close family members or dependants. There is no set amount of time, as each situation is different, however 1-2 days is considered reasonable.
  • Doctor or dentist appointments – there’s no legal requirement for employees to have time off for a visit to the doctor or dentist. This means an employer can insist the employee makes these appointments outside of working hours or make the time up later on. The exception to this rule is pregnant women, who can take paid time off work for antenatal care. Also, if an employee has a disability and requires time off for reasons relating to that disability, an employer may be discriminating against them by refusing their request.
  • Compassionate leave – bereavement leave refers to the time an employee takes off following the death of a loved one. Parental Bereavement Leave, entitles a parent or primary carer to take a period of paid bereavement leave of two weeks in the event of the death of a child (under 18 years old) or a stillbirth after 24 weeks of pregnancy. Any other type of compassionate leave it at the employer’s discretion.
  • Taking a career break – this is when an employee takes time off work for an extended period, e.g. six months.
  • Statutory sick pay (SSP) has a qualifying period of four consecutive days – the first three days of sickness an employee won’t receive pay, unless the employers offer pay as part of the Company’s absence management policy.
  • Eligible employees can take up to 52 weeks’ maternity leave. The first 26 weeks is known as Ordinary Maternity Leave (OML), the last 26 weeks as Additional Maternity Leave (AML). If employees opt to take AML, this is generally unpaid, unless otherwise stated in the contract or employment or within Company policies.

Whilst on unpaid leave from the business, it is worth remembering employees will continue to accrue statutory or contractual annual leave.

An employer cannot force employees to take unpaid leave, unless there is a lay off clause within the contract of employment.

Unpaid time off during coronavirus

Following the outbreak of coronavirus, many employers are dealing with difficult situations. It’s important to remember employees still have the same rights as they did before the pandemic. Here are some examples of where an employer might want to offer unpaid leave during the pandemic:

  • Employees with childcare responsibilities;
  • Vulnerable or shielding employees;
  • Employees living with vulnerable or someone who is shielding; or
  • Employees refusing to work because they think it is unsafe to do so; and
  • Employees suffering with anxiety and their mental health.

The best way for an employer to manage unpaid leave is to have a comprehensive absence management policy which covers all aspects of unpaid leave, that way there’ll be no room for doubt, and everyone will know where they stand. The policy should outline the circumstances in which employees can take unpaid leave, set clear rules for the amount of leave employees can take and define the amount of notice they’ll have to give, and the sort of arrangements they’ll have to make to minimise disruption.

If you would like further guidance or support on this matter or require advice on other people management matters please contact Clover HR on 0121 516 0299 or email us at info@cloverhr.co.uk

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