Dealing with employee bereavement: time off
Elizabeth Stevens of Steeles (Law) LLP begins a series of articles on dealing with employee bereavement with an overview of employees' entitlement to time off work. The statutory right to time off in the event of bereavement is limited but many employers adopt a compassionate leave policy that offers more generous time off work terms.
Introduction
Dealing with bereaved employees poses practical and legal difficulties for employers. Employers need to deal with bereaved employees sensitively and in compliance with legal obligations, but will wish to avoid major disruption to their business.
Employees have no specific statutory right to bereavement or compassionate leave. The statutory right to time off applies only under the provisions relating to time off to care for dependants. However, this right is limited in scope and duration and in practice an employee may need a longer period to deal with the aftermath of the death of a close relative, particularly if the death was unexpected or traumatic. Some employees may be entitled to take leave under their contract of employment, or the employer may grant leave under an express but non-contractual policy. In the absence of a contractual provision or express terms, how much time off an employee is able to take will depend on the employer exercising its discretion, and to what extent it has granted leave, whether paid or unpaid, in the past.
Time off in relation to dependants
The right to time off in relation to dependants is set out in s.57A of the Employment Rights Act 1996. A "dependant" is defined as a spouse or civil partner, a child, a parent or a person who lives in the same household as the employee other than as an employee, tenant, lodger or boarder. The definition does not extend to grandparents or other relatives or close friends unless they happen to live with the employee.
Employees are entitled to take a "reasonable" amount of time off work to deal with certain events relating to dependants, including the death of a dependant. What amounts to a "reasonable" amount of time off is not defined in the legislation and will depend on the circumstances of each case. However, the right is limited to time off to take action that is necessary in consequence of the death of a dependant.
The right to time off under s.57A of the 1996 Act has generally been interpreted narrowly by tribunals. In Forster v Cartwright Black [2004] IRLR 781 EAT the Employment Appeal Tribunal (EAT) held that an employee who took a period of sick leave (which was certified by her GP as being for "bereavement reaction") following the death of her mother, and who had already taken five days' bereavement leave and two weeks' sick leave for the same reason, did not fall within the provisions of s.57A. The EAT was clear that the legislation was not intended to introduce a right to compassionate leave as a result of bereavement. Instead it is limited to matters such as registering the death, applying for probate and arranging and attending the funeral.
The entitlement to time off applies only if the employee tells his or her employer the reason for the absence as soon as reasonably practicable. The employee must also tell the employer the expected duration of the absence. The right does not include an entitlement to pay. Whether or not the employee is paid is left to the employer's discretion, or to any pre-existing contractual right to be paid in these circumstances.
Remedy
An employee who believes that his or her employer has unreasonably refused him or her time off under s.57A of the Act can complain to an employment tribunal (under s.57B). The claim must be presented within three months of the date of the employer's refusal (or within such further period as the tribunal considers reasonable if it is persuaded that it was not reasonably practicable for the claim to be presented in time).
An employee who is dismissed for exercising his or her right to time off under s.57A is automatically unfairly dismissed and does not require 12 months' service to bring a claim for unfair dismissal. Employees also have the right not to be victimised or subjected to a detriment for exercising their right to time off under s.57A.
Contractual and discretionary entitlements
The statutory right to time off is limited in scope, and does not allow for time off for grieving or for supporting other family members. Grief affects people in different ways and employers should be aware that some employees may need more time off than others. Failure by an employer to accommodate an employee's request for compassionate leave could result in a constructive dismissal claim. An employee who is dismissed for absenteeism resulting from bereavement may have grounds to pursue an unfair dismissal claim. An employment tribunal considering a claim in these circumstances would expect the employer to have been sympathetic to an employee who has suffered bereavement and requested time off.
Some employers permit employees to take a short period of paid compassionate leave (for example five days) in the event of the death of an immediate family member. Employers that wish to give employees paid time off should ensure that the provision granting leave is carefully drafted. Employers should also be prepared to exercise some discretion in the case of non-conventional family arrangements (for example where the employee was brought up by a grandparent or more distant relative who has died). Employers may choose to adopt a tiered arrangement, allowing a longer period of time off for deaths in the immediate family and perhaps just one or two days for non-immediate family. Some employers allow employees to take short periods of unpaid compassionate leave as an alternative to, or following, paid leave. Again, the terms relating to unpaid leave should be carefully drafted and employers may need to be flexible in their application of those terms.
It is advisable for employers to set out compassionate leave arrangements in a non-contractual policy, to give themselves an element of discretion and to allow them to amend the terms without the amendments being in breach of contract. The policy should specify to whom a request for leave should be made, how much of the leave is paid and whether or not the employer will consider additional periods of unpaid leave. However, a written policy is no substitute for dealing with each bereavement on an individual basis and it should permit an element of flexibility depending on the circumstances and the employee's own wishes.
Accommodating a longer period of leave
Even where an employee is permitted to take a period of paid or unpaid leave under a compassionate leave policy he or she may request a longer period. The employer in this situation will need to decide whether or not it can accommodate a request for further leave, and how that period of leave should be treated. Employers should be wary of refusing extra time off if other employees have been granted it in the past, unless they have good reasons for doing so.
Employers should also bear in mind that different religions have differing customs and traditions in the event of death, and they may need to be flexible and permit an extended period of leave in some cases. For example, in Hinduism close relatives observe a 13-day mourning period after cremation. In Judaism immediate family members are required to stay at home for a period of seven days' mourning following a death.
Employers should address the question of how an extended period of leave should be treated directly with the employee, in a sensitive manner. A period of unpaid leave could be agreed, or the employee may elect to use some of his or her annual holiday entitlement. The employer could also consider whether or not a temporary period of flexible working would assist the employee through a difficult period.
An individual's reaction to bereavement may result in a period
of sickness absence. In an emotionally vulnerable individual bereavement could
trigger a mental disorder, in which case the employer may need to consider its duties
under the Disability Discrimination Act 1995 (DDA). In Shrubsole v The Governors of
Where an employee takes sick leave the employer is entitled to require him or her to comply with the usual procedures for sickness absence, for example the reporting arrangements and provision of medical certificates.
Next week's topic of the week article will look at the measures that employers can take to support employees returning to work after bereavement, and the problems that may arise, and will be published on 12 October.
Elizabeth Stevens is a professional support lawyer in the employment team at Steeles (Law) LLP (estevens@steeleslaw.co.uk).
Further information on Steeles (Law) LLP can be accessed at www.steeleslaw.co.uk.
