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When absence doesn't necessarily make the heart grow fonder...
This article highlights some important points to bear in mind when dealing with staff absence from work whether this be time off for public duties, time off for dependants, paternity and parental leave or “absence” in the form of flexible working arrangements. It’s important to check which categories of staff qualify for which particular rights as definitions in the legislation can vary, and some apply to employees only whereas others apply to workers.
Time off for public duties
• Employees only have a statutory right to reasonable unpaid time off for certain public duties. Examples include: acting as a magistrate, being a member of a board of prison visitors and membership of certain education and health bodies (including school governing bodies and NHS trusts).
• The amount of time and when it is taken only needs to be “reasonable in all the circumstances” so consider how much time the employee needs to take to perform the duties, the circumstances of your business and the effect of the absence on the running of the business.
• If you do decide to allow time off for such activities, it is best to include this in a non-contractual policy setting out the circumstances in which time off will be granted or refused and whether that time will be paid or unpaid so that the position is as clear as possible. This should help to minimise the chances of any dispute arising. Since you are able to take into account the effect of any time off on the operation of your business when deciding whether to agree a request, it could be helpful to include in your policy examples of the business factors you would consider before granting time off, which are relevant to your specific industry sector.
• If you do refuse time off, you should keep a written record of the reasons why. Provided you have considered the request properly and you have legitimate reasons for refusing it, this should defeat any claim.
Time Off for Dependants
• The employee is only entitled to a reasonable amount of time off. The right does not permit employees to take time off in order themselves to provide care for the dependant in question, beyond the reasonable amount of time necessary to enable them to deal with the immediate crisis making the immediate presence of the worker indispensable. However, this has been interpreted widely by the Courts, for example, the right to take time off in consequence of the death of a dependant would not be just restricted to making funeral arrangements and attending the funeral. Other arrangements would be regarded as necessary, such as applying for probate and registering the death.
• Consider the circumstances carefully - Factors to be taken into account in determining whether action is necessary will include the nature of the incident which has occurred, the closeness of the relationship between the employee and the dependant and the extent to which anyone else was available to assist her. Once an employee is aware of a particular problem, i.e. that a dependant is suffering from an illness which is likely to involve regular relapses, such a situation does not fall within the scope of the time off for dependants’ regime.
Paternity Leave/Parental Leave
• Exercise care with enhanced paternity benefits – Especially if your maternity policy provides employees only with their statutory entitlement since this could potentially give rise to claims for sex discrimination.
• Try to find out how requests for paternity leave/parental leave have been handled in the past. To reduce the risk of claims of discrimination or constructive dismissal (which usually arise when there is a breach of trust and confidence), it is important to ensure that all employees are treated consistently. In practice, it could be difficult to adhere strictly to the statutory regime when, in the past, you have deviated from this and potentially created a precedent.
• Investigate facts before postponing a request for parental leave – You can postpone parental leave for up to 6 months but this should be done following consultation with the employee. You should also speak to his line manager and/or colleagues to check whether or not it would be practicable for him to be away from the office during those dates.
• Check that the application is child related – It must be to enable the employee to spend more time with his or her children or to help with dropping the child off at school. Applications to work flexibly cannot be made for any other purpose.
• Ensure that the employee is offered the right to be accompanied – The employee has the right to be accompanied at a meeting to discuss her application (which should take place within 28 days of receiving the request) by a companion of his or her choice who is a worker employed by you.
• Consider alternative working arrangements – If the original working pattern cannot be accommodated, you should explore whether any other arrangement may be appropriate.
As a matter of course, when you are faced with a request for any form of leave you should:
• check that the qualifying requirements are met;
• consider whether you have a policy or does the employee have enhanced contractual rights?
• investigate the position and consult with the employee/worker;
• ensure that you treat employees/workers consistently; and
• document your discussions and agreement.