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Authorised Absence Overview

Authorised absence is the term given to any form of absence from the workplace with permission.

An employee can take authorised absence in a wide variety of situations, including family related leave. The various forms of family related leave are dealt with in separate sections, see Maternity Overview [FS11.01], Adoption Overview [FS14.01], Shared Parental Leave Overview [FS24.01], Paternity Overview [FS13.01], Parental Leave Overview [FS23.01], Time off for Dependants Overview [FS25.01]. In some circumstances, there are also rights to paid or unpaid time off work to perform trade union duties (see Time off for Trade Union Duties and Activities FS69) or for training (see The Right to Request Time to Train FS63).

Management can also authorise other forms of leave such as compassionate leave, leave for jury service or specified public duties and career breaks. It is also possible to use management discretion to grant leave on an ad hoc basis as special leave, caution should be exercised to avoid creating any entitlement to such leave upon future similar requests by custom and practice.

Authorisation would usually be given in advance of the leave being taken but it is possible to retrospectively authorise an employee’s absence, for example in emergency situations or a sudden bereavement.

In situations where an employee is absent without leave this can be regarded as a potential disciplinary offence, see Unauthorised Absence Overview [FS4.01] for further information on unauthorised absence.

1. Compassionate Leave

Employees do not have a legal right to take time off work for compassionate leave. However, where this time off is also covered by the right to take time off to care for dependants (see Time off for Dependants Overview [FS25.01]) there will be a right to take reasonable time off in those specific circumstances i.e. to take time off to take action that is necessary as a consequence of a dependant's death. This enables an employee to deal with the logistical matters which arise as a result of a death (including arranging and attending a funeral and, where appropriate, applying for probate and meeting with probate officers).

Any time off outside of the time off for dependants’ right is at the discretion of the employer. Many employers will want to have a policy on compassionate leave to set out how and when it will apply and how it should be requested. The employer can decide whether to offer compassionate leave as paid or unpaid time off and whether or not to set any limits on the amount of time off that will be granted.

For an example policy, see Compassionate Leave Policy [P22.01].

2. Medical and Dental Appointments

There is no general right for an employee to take time off for routine medical or dental appointments. The employer has a discretion to allow time off for such appointments (whether paid or unpaid).

The right for pregnant employees to take paid time off for antenatal appointments is separate, see Maternity Leave and Pay Factsheet [FS11.02]. There is also a right for partners of pregnant women to take unpaid time off to attend two ante-natal appointments with the pregnant woman, see Paternity Leave and Pay Factsheet [FS13.02].

Where the medical appointment is required due to a disability the employer’s obligation to make reasonable adjustments may be triggered. This could require the employer to permit a disabled employee time off for the appointment in circumstances where it would not normally allow such absence. For more information on reasonable adjustments see Disability Discrimination [FS3.04].

For an example policy see Medical and Dental Appointments Policy [P22.02].

3. Jury Service

There is no specific right for an employee to take time off work if they are summoned to do jury service. However, employers are prevented from subjecting employees to detriment or from dismissing them (automatic unfair dismissal), as a result of them being summoned for jury service or being absent from work on jury service.

This means that in practice employers will have to grant time off work when employees are summoned for jury service. If this time off was not granted and the employee took it off anyway then the employer would not be able to take any action against the employee. The time off does not have to be paid time off, some employers choose to grant paid leave to allow employees to perform jury service (or to supplement the amount that the employee can claim from the court).

If the employee’s absence to perform jury service is likely to cause “substantial injury” to the employer’s undertaking it is possible for the employee to apply to be excused or for the jury service to be deferred. See Deferral/Excuse from Jury Service Letter [SL22.01].

If the employer believes that the employee’s absence will cause substantial injury to the business (due to the timing, employee’s role or otherwise) then the employer should bring this to the attention of the employee and instruct them to make an application to the court. If the employee unreasonably refuses or fails to apply to the court to be excused or to defer their jury service then they will lose their protection from unfair dismissal.

There is no right to time off work to act as a witness in court. If an employee requires leave to act as a witness they should take annual leave or the employer may grant unpaid leave.

See Jury Service / Acting as a Witness Policy [FS22.06] for an example policy.

4. Voluntary Public Duties

Employees have a legal right to unpaid time off work during normal working hours to carry out certain specified public duties. The amount of time that an employee can take off, when it can be taken and any conditions the employer may set are those that are reasonable in all the circumstances.  Relevant factors include: how much time off the employee requires to perform their duties, how much time off the employee has already taken to do so, the employer's business circumstances and the effect of the employee's absence.

The list of specified public duties is extensive and may be widened in scope, if you want to check whether a particular public duty is covered, legal advice should be sought.

When an employer refuses to grant a reasonable request for time off work to perform public duties the employee can bring a claim to the Employment Tribunal for compensation, at a level which the Tribunal considers just and equitable having regard to the employer's default and any relevant loss sustained by the employee. If you are considering refusing a request on the basis that it is not a reasonable request legal advice should be obtained.

The right is to take unpaid time off but an employer may choose to provide paid time off at their discretion. See Voluntary Public Duties Policy [P22.03] for an example policy.

5. Reserve Forces

Employees who are also members of the Reserve Forces (the Reserve Land Forces (Regular Reserve and the Army Reserve, formerly known as the Territorial Army) Reserve Naval and Marine Forces, and the Reserve Air Forces) may be mobilised at any time to be used on full-time operations. In addition, they will be expected to attend regular training.

Employees have no right to time off for mobilisation (many employers do allow them that right). However, an employer is obliged to re-employ any reservist who was last employed by them in the four week period before mobilisation. The employee must be allowed to return to their job within six months after the end of their military service (demobilisation).

Re-employment should be in the same job and on terms and conditions no less favourable than those which would have applied if they had not been mobilised. If full reinstatement is not reasonable and practicable, the employee must be offered the most favourable terms and conditions that are reasonable and practicable in the circumstances. The employee must be allowed to remain in post for a minimum protected period, depending on their pre-mobilisation length of service.

The period of the call-up is not counted for continuity purposes unless the employer continues the contract of employment during mobilisation.

In relation to absence for training, employers are under no obligation to offer paid or unpaid leave to reservist employees. Employees may be expected to use their existing holiday entitlement or seek the agreement of their employer if this is not sufficient.

There is no obligation on an employer to allow an employee time off for voluntary mobilisation. However, where a call-up notice has been issued, the employee would face criminal charges if they failed to comply with it. The employer could also face criminal charges for inducing the employee not to comply with the call up notice.

The employer has a limited right to object by applying for the mobilisation to be delayed or cancelled but cannot prevent the employee being mobilised or refuse to re-employ them. The Ministry of Defence will send an employer written notice of the fact that a reservist employee has been called-up. The employer has a right to seek a revocation or deferral of the mobilisation if it would cause harm to its business (that grants of financial assistance available to the employer would not prevent).

If an employer terminates a reservist's employment on the grounds that they may be mobilised at a future date, it is guilty of a criminal offence. A court can order the employer to pay compensation to the employee as well as levying a fine. The employee may also have a claim for unfair dismissal (the usual requirement for 2 years’ qualifying service does not apply).

See Reserve Forces Policy [P22.04] for an example policy.

6. Career Breaks and Sabbaticals

Some employers may want to give employees the chance to take a career break or sabbatical. There are two basic forms that this type of arrangement can take (i) a period of unpaid leave during which the employment continues or (ii) a temporary break in the employment relationship, with an agreement to resume the employment at the end of the career break.

There is no general legal right to request, or be granted, a career break so this is at the discretion of the employer. An employee may be interested in a career break for a vast variety of reasons (travel, voluntary work, family, further education) and a willingness on the part of the employer to consider this, or a formal policy, can assist with improving employee relations and can aid retention of key employees. Where an employee requests a career break for reasons relating to family, depending on the circumstances and the length of leave required this may be more appropriately dealt with as parental leave (see Parental Leave Overview [FS23.01] for more information) or another form of leave. In these circumstances the employer should discuss other available options with the employee.

Some employers offer employees the right to take a career break as a benefit (sometimes linked to length of service or seniority), others have a policy that makes it clear that employees can request career breaks and, when they do so, outlines the process for this and how the request will be considered. For an example policy see Career Break Policy [P22.05]. Even if there is no policy in place employees may approach their employer to request a career break, which the employer should consider granting and deal with such requests consistently.

Unpaid Leave/Sabbaticals

Where the arrangement is that the employee will remain in employment during a period of extended unpaid leave, this is commonly referred to as a sabbatical. It is recommended that the terms of the arrangement are set out in a written agreement so that both parties are clear on their rights, obligations and duties during the period of the sabbatical and afterwards.

As the employment relationship continues during the period of the sabbatical, this means that the employee maintains continuity of employment (which is important in relation to some key employment rights and claims, such as the ability to claim unfair dismissal or to a redundancy payment if their role is no longer available at the end of the sabbatical period). The employee will also continue to accrue statutory annual leave during a sabbatical, although any additional contractual annual leave (over and above the statutory minimum) can be suspended by agreement, provided this is covered in the sabbatical agreement. The sabbatical agreement should also make it clear which benefits continue during the sabbatical and which are suspended.

The fact that the employment continues during the sabbatical also means that the employee can remain bound by their contractual terms and any other rules that the employer sets for during the sabbatical period. The employer may want to prohibit the employee from taking other employment (or taking certain types of employment such as with a competitor), require the employee to keep themselves up to date with developments, maintain some level of contact with clients, customers, colleagues or other contacts, etc.

Temporary break in Employment/Career Break

Many employers prefer the employment relationship to temporarily cease, especially for longer career breaks. The advantages of this approach for the employer are that the continuity of employment will be broken as the employee would be required to resign, the employee would not retain any employment rights during the career break or accrue annual leave and there can be more flexibility about re-employment at the end of the career break. On the other hand, retention may decrease with this approach compared with the sabbatical where the individual remains in employment, knowing they have a role to return to.

At the end of a career break the employer may want to agree certain events will take place, such as that a role will be sought for the employee in the event that the employee seeks to return to work within a specified timeframe. It is also possible to agree with the employee the type of roles that will be considered. However, it is not generally recommended that the employer makes any guarantees that a specific role will be available for the employee on their return or even that a role will definitely be offered to them. Depending on the length of the career break, circumstances could change significantly meaning that there would be no role available and therefore any guarantees or promises which cannot be kept would result in a breach of contract claim risk. Further, a guarantee of a role on return which is given before the resignation at the start of the career break could mean that the continuity of employment is not actually broken by the career break i.e. that the break in employment was only ever temporary.

During a career break where the employment has ceased it is more difficult for the employer to set any rules or restrictions on what the employee can do during that period. It is possible to make the return to work provisions contingent on the employee behaving in a certain way during the career break (for example not working for a competitor) but it would be difficult to enforce any strict prohibitions.

7. Other Authorised Absence

There may be other situations where employers are required to, or wish to, grant employees leave that does not fall into any of the above categories. An employee may request leave in special circumstances and an employer can authorise such leave on an ad hoc basis as special leave (either paid or unpaid). It is important to ensure that consistency of treatment is maintained between employees to avoid discrimination claims risks or allegations of less favourable treatment. Whenever a special leave request is made the employer should consider the circumstances and the precedent this may set for future cases.

Many employers have a policy in place covering situations where employees are unable to safely attend work due to severe weather or problems with transport. Such a policy may be useful especially in larger organisations where managers are less able to consider special leave requests from multiple employees on days where disruption is common to many employees. The policy can set out what is expected of the employees and any particular requirements such as working from home where possible. For an example, please see Severe Weather and Travel Disruption Policy [P22.07].

This document has been created by, or on behalf of ESP Ltd, as a general document and as a guide in relation to its subject matter and has not been bespoke drafted for you or the specific circumstances in which you are looking to use it. Prior to using this document and undertaking any HR process you must consult your organisation’s own policies and procedures to ensure that you do not do anything in conflict with your own policies and procedures.  If in any doubt as to how to use this document or, if you require any legal advice, please feel free to contact ESP Ltd on 0333 006 2929 and our legal team will be more than happy to assist.  ESP Ltd will not be liable in any way for any actions undertaken by you or your use of this document unless we have been consulted regarding your use of this document as legal advisor to your business or have bespoke drafted any documentation in response to a specific support request.

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