Unpaid Leave & Coronavirus

By April Harrington.
12 Jun 2020

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.

*Note* We’ve updated this piece to account for changes to unpaid leave entitlements due to the coronavirus lockdown.

We have a dedicated line for urgent enquiries for relating to the coronavirus. Call us on 0800 141 3932 to speak to our expert advisers.

Coronavirus unpaid leave

One of the many effects of coronavirus is a reduced demand for certain products or services. The decrease in demand has led to some employers asking their staff to take unpaid leave due to coronavirus lockdown.

However, in a coronavirus government announcement, the job retention scheme was announced. With this (and your employee’s agreement), you can put the employee on furlough to avoid dismissing them because you’ve closed the business. Or as you no longer have work for them.

It's worth noting, employees have to be eligible for it. To be eligible, they’ll need to have been on your PAYE on or before the 19 March 2020.

Unfortunately, the 10th June was the last date for new employees to be furloughed except for some groups, including those returning from certain types of family leave.

So can employers still ask staff to take unpaid leave? There aren’t specific employer and employee rights regarding coronavirus and unpaid leave specifically. This includes whether you can force your employees to take them.

But, there is support for employees who aren’t eligible for the scheme. They can still be sent on unpaid leave, but when they are, they can apply for Universal Credit. It’s intended to help people who are on low income or out of work.

However, you can ask an employee not to attend work, but you’d still have to pay them. That is, unless there’s a clause in their contract of employment stating otherwise.

There’s also no specific limit to how long you can put your staff on unpaid leave in the UK—even during the coronavirus epidemic.

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.

There is one exception to this: parental bereavement leave. For full details on everything parental bereavement leave and pay, read this article.

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.

Bear in mind that employees who are laid off or put on short-time working are entitled to pay for days where they do no work at all. This is 'statutory guarantee pay' and is the legal minimum you must pay.

The maximum employees can get is £30 a day for 5 days in any 3-month period. That’s a maximum of £150. If they earn less than £30 a day they will receive their normal daily rate.

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 0800 141 3910.

About the Author

April Harrington.

An experienced Senior Employment Law Consultant, who has worked for the group for over 9 years. April specialises in discrimination legislation. April has an extensive background in training, as well as recruitment and hospitality.

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