Are Employees Entitled to Unpaid Leave?

Amanda Beattie

Amanda Beattie

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12 Aug 2019

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There are a number of reasons an employee might want to take time off work.

Some of these reasons will have a legal precedent and rules to follow, others won’t. In this article, we’ll explain unpaid leave entitlement, as well as the rules and regulations surrounding it.

What is unpaid leave?

Legally, you must give employees time off for holidays. This is a minimum of 5.6 weeks holiday a year, otherwise known as statutory holiday entitlement.

Unpaid leave in the UK is leave for which individuals have no statutory right to be paid.

How many days’ unpaid leave is an employee entitled to? 

There’s very little law around unpaid leave.

In particular, there’s no maximum or minimum amount of unpaid leave from work that employees legally must have.

The legislation most employers refer to when dealing with this is the Employment Rights Act 1996.

But even then, the law differs depending on the reason for unpaid leave.

Reasons for time off 

There are a number of scenarios where an employee might request time off. Here are the most common:

Public duties

If the employee is a local councillor or school governor, for example. As an employer, you must give a reasonable amount of unpaid leave.

Jury service/duty

You 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.

You don’t have to pay the employee for their time off to perform jury service.

Emergencies

Sometimes known as ‘dependant leave’, employees do have an entitlement to take time off to deal with unexpected problems with close family members or ‘dependants’.

You don’t have to pay the employee for this type of leave and there is no set amount of time, as each situation is different. 1-2 days is considered reasonable.

Doctor or dentist appointment

There’s no legal requirement for employees to have time off for a visit to the doctor or dentist. This means you can insist the employee makes these appointments outside of work 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, you may be discriminating against them by refusing their request.

Unpaid parental leave

To clarify, we’re not talking about maternity, paternity or shared parental leave.

The above is paid leave entitlement—here we’re looking at when an employee wants to take time off to care for their child.

The dependant is a child up until their 18th birthday. Employees can take up to 18 weeks in total until the child reaches that age.

The employee in question must have been with the company for at least a year and should take the leave in 1-week blocks.

Generally, the limit on the amount of time taken is 4 weeks for each child in a year, however, you can agree to more than this.

Compassionate leave

The final reason for unpaid leave we’ll cover here is compassionate leave. It’s not uncommon to hear employers ask: “Is compassionate leave paid or unpaid?”

The simple answer is: it’s up to you.

Legally, you don’t have to pay employees, or even offer them bereavement leave at all.

However, it’s usually a benefit to the employee and the employer to do so.

If you’re unsure, it’s worth drafting a compassionate leave policy to refer back to when necessary.

Unpaid leave benefits

Flexibility at work is much more commonplace and acceptable now than it was a decade ago.

Which is why being lenient with leave makes you an attractive employer.

A recent YouGov study found that flexible working was one of the most important benefits to employees in the modern workplace. Unpaid leave is a big part of that.

Not only does it help attract new talent, but it also helps you retain current staff. Giving the correct benefits to employees helps motivate them and increases their loyalty to the organisation.

Unpaid leave rights

Do employees have a right to unpaid leave?

It’s worth referring to each individual reason for time off above for more specific answers relating to the employees’ situation.

For that reason, there is no overarching answer to the question.

Most unpaid leave rules are in the employment contract. This means employees may or may not have a contractual right to unpaid leave. It’s really up to you.

Forced unpaid leave

As an employer, you can force an employee to take unpaid leave if there’s not enough work available for them—commonly known as laying an employee off – this must be pre-established with a contractual provision in place.

There’s no limit to how long you can lay-off an employee, but if they’ve been away from work for four weeks in a row, or six weeks within a 13-week period where no more than six weeks are consecutive, then they can apply for redundancy pay and resign from their position.

Unpaid leave of absence letter

Laying someone off is often tricky, so it’s important you communicate it correctly.

Luckily, Croner has a template letter informing an employee they are to be laid off.

Unpaid sabbatical leave policy

It’s not uncommon for businesses today to offer their employees extended periods of unpaid leave as a ‘career break’.

This means they can travel, carry out voluntary work, start a course, or just take a break from the stress of work.

There is no statutory right in the UK for employees to take an extended leave, so it’s entirely at your discretion whether you choose to offer this.

Expert support 

If you need guidance on unpaid (or paid) leave, then speak to a Croner expert today on 0808 145 3380.

About the Author

Amanda Beattie

Amanda represents corporate clients and large public bodies, including complex discrimination and whistleblowing claims. Amanda also drafts and delivers bespoke training regarding all aspects of employment law, including ‘mock tribunal’ events; in addition she also frequently drafts employment law articles for various publications for Croner and their clients.

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