Unpaid Leave: To Pay or not to Pay
Many employers not only struggle with the vast scope of employment law, but when it comes to the family friendly legislation and time away from work for public duties etc. there is often a confusion as to what is paid and what is unpaid leave. Plus, you need to consider when your staff can ‘return to work’.
So my aim is to try to make it simpler for you: What is required to be paid by law and what is unpaid, that is the law states there is no need for an employer to pay normal wage or salary.
I’ve selected more from the “unpaid” column below as I think these are the ones which an employer rarely uses and when the situation arises can often be confused as to the legal rights of pay. I’ve also elaborated statutory sick pay (SSP) as it has demanding criteria and can fall into paid and unpaid.
This article is intended as an aid, as legislation can be complicated and it is advisable to have an up to date separate policy on each of the below itemised area. In particular for those areas listed in the “paid” column but where I have not elaborated.
Sagegreen HR will be able to provide assistance in any of these areas.
|Maternity (39/52 weeks)||Maternity (13/52 weeks)|
|Paternity||Time off for dependants|
|Authorised Absence||Authorised absence|
|Anti-natal appointments (Mother)||Anti-natal for the co parent|
|Statutory/Company Sick Pay||Statutory Sick Pay.|
|Trade Union Representatives and their duties.||Public duties: Jury Service, Reserved Forces, etc|
|Adopted Leave||Religious Festivals and Holy Days|
|Time off work for training|
|Bereavement or Compassionate Leave|
Starting with sick pay this can be convoluted and is both paid and unpaid, either under Statutory Sick Pay requirements (SSP) and/or Company sick pay. SSP has a qualifying period which is four days (the four qualifying absent days must be in a row and includes non-working days, the payment commences on the fourth day, so the first three are not paid, unless you’ve been paid SSP within the last eight weeks and are eligible for it again) Then the remainder is paid at a level set by the state (£88.45) for up to 28 weeks. The payment amount may change every year. Always check with your HR expert to see if you are paying the legal amount.
To qualify for Statutory Sick Pay (SSP) the employee must:
- be classed as an employee and have done some work for your employer
- have been ill for at least 4 days in a row (including non-working days)
- earn at least £112 (before tax) per week
- tell the employer in time. This is normally set by the employer in absence reporting procedures or within 7 days if they employer doesn’t have a procedure.
- Agency workers are entitled to Statutory Sick Pay.
Employees won’t qualify if:
- They have received the maximum amount of SSP (28 weeks)
- are getting Statutory Maternity Pay
Be aware new employees can still qualify for SSP even if he or she hasn’t received 8 weeks’ pay yet. If an employee has regular periods of sickness, it may count as ‘linked’. To be linked, the periods must:
- qualify for SSP by lasting 4 or more days each
- be 8 weeks or less apart
Employees are no longer eligible for SSP if he or she has had a continuous series of linked periods that lasted more than 3 years. In this case, employees may be able to apply for Employment and Support Allowance (ESA) if they’re not eligible for SSP or it has ended or is coming to an end. As an employer you do this by giving form SSP1 to your employee:
- within 7 days of going off sick, if the employee doesn’t qualify for SSP
- within 7 days of employees’ SSP ending, if it ends unexpectedly while he or she is still sick
- on or before the beginning of the 23rd week, if the SSP is expected to end before the sickness does
So what about authorised absence? This is when you as the employer agree that an employee can take time off. Are you obliged to pay it? The answer is no unless it is covered by law (see table above). For example no legislation covers bereavement leave (or compassionate leave). However as such a difficult time for an employee most employers will want to do the right thing and demonstrate their support by paying for time away from work. Then this needs to be balanced with what is the right amount to pay? Further, who do I pay for or not pay? Should I include the aunt that they were very close to or not? What about the dog? Then if we were to look at the definition of compassionate leave, both employer and employee may have different definitions of this. For example your employee’s Father/mother/spouse/step grandparent/cat has had a road accident and is in hospital. Do you grant i) compassionate leave? And ii) Do you pay for it? In this case it is not the relationship that is paramount but more so the hospitalisation.
Having an Absence policy in place will remove all ambiguity and awkwardness, a policy which outlines every situation which may require an employee to take time off from work at short notice.
On the flip side authorised absence can be unpaid too (for example when they’ve run out of holiday but request time off). It would be prudent for an employer to include in any absence policy how they will address authorised but unpaid absence, if or when it is deemed to be nearing a substantial number of days of absence.
So what other areas of paid or unpaid leave are there?
Jury service: You don’t have to pay staff while they’re doing jury service, but many employers do. If you agree to pay your employee ensure it is processed in the normal way. That is with the usual deductions. You can’t claim back money you’ve paid the employee or that the business has lost during the jury service.
If you don’t pay your employee, they can claim a loss of earnings allowance from the court.
You’ll need to fill in a certificate of loss of earnings for your employee. They’ll get one with their jury service letter. If their jury service lasts longer than 3 months, put ‘Yes’ in the ‘Irregular payment pattern indicator’ field in your Full Payment Submission (FPS).
You may decide to top up your employee’s allowance so they don’t lose out on pay. You’ll need to fill in a certificate of loss of earnings for your employee. They’ll get one with their jury service letter.
To work out the top-up payment, subtract the court allowance from your employee’s usual take-home pay. This will give you the amount you need to give your employee. Use your payroll software to work out the ‘net to gross’ amount, and deduct tax and National Insurance from it.
Employers must allow an employee time off if they’re called to serve on a jury and you can’t discriminate against your employee for going on jury service. If you dismiss your employee for going on jury service they could take you to an employment tribunal. You can ask your employee to try to delay their jury service if their absence would seriously harm your business. They’ll need a letter from you explaining why. They can only delay jury service once in a 12-month period, and must say on the jury summons when they’ll be available. Jury service usually lasts up to 10 days, but can be longer.
Time off for Trade union representatives’ duties : Reps are entitled to reasonable paid time off to do their union work as long as the union is:
- Officially recognised by the employer to represent union members in negotiations on things like pay and terms and conditions.
- trade union duties reps have the right to paid time off for :
- negotiating pay, terms and conditions
- helping union members with disciplinary or grievance procedures including meetings to hear their cases
- accompanying union members to meetings with their line manager to discuss flexible working requests
- discussing issues that affect union members like redundancies or the sale of the business.
Union learning reps have the right to paid time off to:
- analyse the learning or training needs of union members
- give information and advice about learning or training
- arrange or encourage learning or training
- discuss their activities as a learning representative with their employer
- train as a learning representative.
Reps aren’t allowed paid time off to attend union meetings or go to meetings with union officials. Instead, employers should allow unpaid time off for these activities. Reps aren’t allowed any time off for industrial action.
There isn’t a legal definition of reasonable time off. Union reps and employers should discuss reasonable time off and come to an agreement about it, but things that need to be taken into account are the:
- kind of work the business or organisation does
- needs of line managers and co-workers
- importance of health and safety at work
- amount of time reps have already had off for trade union work
Time off work for public duties: Employees can get time off work for certain public duties in addition to their normal holiday entitlement. Employers can choose to pay them for this time, but they don’t have to.
An employee can also get a ‘reasonable’ amount of time off if they’re:
- a magistrate (also known as a justice of the peace)
- a local councillor
- a school governor
- a member of any statutory tribunal (eg an employment tribunal)
- a member of the managing or governing body of an educational establishment
- a member of a health authority
- a member of a school council or board in Scotland
- a member of the General Teaching Councils for England and Wales
- a member of the Environment Agency or the Scottish Environment Protection agency
- a member of the prison independent monitoring boards (England or Wales) or a member of the prison visiting committees (Scotland)
- a member of Scottish Water or a Water Customer Consultation Panel
- a trade union member (for trade union duties)
Reasonable time off: The amount of time off should be agreed between the employee and employer beforehand, based on:
- how long the duties might take
- the amount of time the employee has already had off for public duties
- how the time off will affect the business
The employer can refuse a request for time off if they think it’s unreasonable.
Who doesn’t qualify for time off: Staff can’t ask for time off work for public duties if they’re:
- agency workers
- members of the police service or armed forces
- employed on a fishing vessel or a gas or oil rig at sea
- merchant seamen
- civil servants, if their public duties are connected to political activities restricted under their terms of their employment
Employees can raise a grievance if they feel that employers aren’t allowing them to take enough time off for public duties.
Employers can choose to pay staff for time taken off, but they don’t have to.
- Employees in the reserve forces
- Employees in the Army Reserves or other reserve forces have certain protections under employment law if they’re called up for service.
- Employers of reservists also have particular rights and obligations in this situation – eg they may be able to claim financial assistance or apply for an exemption.
Parental leave: If an employee has completed one year’s continuous service with an employer, they are entitled to 18 weeks unpaid parental leave for each child born or adopted. The leave can start once the child is born or placed for adoption, or as soon as the employee has completed a year’s service, whichever is later.
Religious festivals and holy days
There are a wide range of different religions that may occasionally affect the workplace. Each religion will have its own special holy days and festivals that may require additional practices for its followers.
It is useful for both employees and employers to raise and discuss any impact this may have in the workplace, to assist and manage everyone’s expectations. Employers are under no legal obligation to grant a religious-based request for time off. However, it is not only good practice to accommodate as many of these requests as can be balanced against the requirements of running a business, but it is also important to ensure that such requests are handled in a tactful and consistent manner. Also, whilst showing some consideration to a religious group during holy days and festivals can be beneficial, it is also important not to disproportionately favour that group to the disadvantage of colleagues with different (or no) religious beliefs.
It is generally unadvisable to offer paid special leave for such time off requests because an employer needs to ensure they do not discriminate in favour of a particular religion. However, employers may consider using:
- annual leave entitlement
- flexi-time arrangements
- one-off/discretionary flexi time off to be made up at a later time
- unpaid leave
Whichever option is used will need to be agreed between employer and employee.
Worship and prayer: Holy days and festivals may mean some employees believe they need to attend additional religious events. While some of these are tied to specific times, others may lend themselves to being flexible and attendance may be postponed until later.
There is no right that guarantees employees time off to attend religious services, but it is good practice for employers to accommodate requests where possible, this will depend on the overall level of demand for time off and the requirements of the business. It is helpful to discuss if an employee requires a full day away or if they just want a few hours, especially if an employer operates a flexible working system.
Employees remaining in the workplace may also wish for a private space for prayer or meditation. Employers may have prayer rooms for such purposes but if not, designating such a space temporarily
at certain times of the day (based on employees’ requests) can be of particular help during religious festivals and holy days. An example of this is the additional prayer of Musaf recited on major Jewish holy days.
Fasting and abstinence: Fasting usually involves having limited/no food and/or drink for a specific day or period (e.g. sunrise to sunset). Examples of this include the Hindu festival of Maha Shivaratri and the Islamic festival of Ramadan.
Abstinence usually involves refraining from certain items or practices during a period of time (e.g. not eating meat). An example of this is how some Christians mark Good Friday.
During such periods, it is often advisable for employees to inform their manager of the observance (especially in the case of fasting) as it will explain why the employee is not eating. Lack of food may affect performance in different ways. Equally, although breaks should be kept, flexibility around their timings may make it easier for an employee to manage their workload if they wish to take time off to carry out additional prayer or worship. Longer periods of fasting and abstinence can be particularly challenging and tiring for employees. Minimising/spreading out particularly physically/mentally demanding tasks can help. Employers who are able to be more flexible with their employees throughout such a time are likely to receive extra appreciation and effort from their employees.
Some major religious festivals
- Diwali (Hindu)
- Guru Nanak (Sikh)
- Lent (Christian)
- Pesach/Passover (Jewish)
- Ramadan (Islam)
- Vesak (Buddhist)
Time Off for Dependants Leave Policy: This is a right allowing employees to take a reasonable amount of unpaid time off work to deal with certain unexpected or sudden emergencies and to make any necessary longer term arrangements. The emergency must involve a dependant of the employee.
For Example: Going to collect a child because school/child minder – has called to say that the child needs to be collected is emergency leave and allows you to go and collect the child and make alternative arrangements for the care of that child.
If there is no alternative and it is the employee that must take care of the child – this is no longer emergency leave and becomes paid or unpaid, authorised or unauthorised leave unless the employee calls and ask for it to be taken as holiday (paid) or authorised leave (unpaid) and it is agreed.
The difference between authorised leave (over and above holiday entitlement) paid or unpaid is that it may or may not be taken into consideration when managing attendance depending on the definition of an excessive amount of requested “authorised” leave. Clarity through measures is a tip to assess this.
Time off work for training: Most employees have the right to ask for time off to carry out training that will improve their performance at work. Employers don’t have to pay for the training or study, however, some employers will pay all or part of the fees if they think it will benefit the business.
Requesting time off: Employees who have worked for their employer for at least 26 weeks can request to undertake training that leads to a qualification or will help them develop skills relevant to their work, workplace or business.
Those who are unable to request time off include:
- agency workers
- members of the armed forces
- a 16-18 year old who is already expected to take part in education or training.
Employers should be aware that there are obligations, processes and timelines to be met by both employer and employee when addressing a request from an employee for time off.
An employer can refuse the time off, but the employee has the right to appeal and this process also has timelines for submitting and hearing the appeal.
Shared Parental Pay: Statutory Shared Parental Pay is paid at £139.58 (subject to annual change) or 90% of your average weekly earnings (whichever is lower).
If the mother or adopter curtails their entitlement to maternity/adoption pay or maternity allowance before they have used their full entitlement then Statutory Shared Parental Pay can be claimed for any remaining weeks.
To qualify for Statutory Shared Parental Pay a parent must pass the continuity of employment test and have earned an average salary of the lower earnings limit of £111 for the eight weeks’ prior to the 15th week before the expected due date or matching date. The other parent in the family must meet the employment and earnings test.
If you have any specific enquiries or need any HR help, then please get in touch