An employee’s absence from work is often the basis for disputes between employers and their staff.
A fundamental concept of employment is that an employee works for their employer at the times and places agreed in their contract of employment.
The Working Time Regulations and other industry specific regulations, like those that regulate driver’s hours, control the number of hours that an employee can work before having to have a break and also time off work.
Every worker has to have at least 5.6 weeks’ paid annual leave (Working Time Regulations).
How and when an employee takes their holiday will be regulated by their contract of employment. For example, many employers have periods of annual shutdown when the workplace is closed and staff are obliged to take their holidays.
Absence For Other Reasons
Apart from holidays the law also provides that employees have a right to take leave from work for different reasons. These include:
- maternity leave, paternity leave, parental leave, and adoption leave;
- time off for family and dependants;
- time off for ante natal care in pregnancy;
- time off to deal with duties as a trade union official;
- time off to deal with duties as a trade union learning representative;
- time off to deal with duties as a member or candidate for membership of a European works council;
- time off to take part in trade union activities;
- time off for 16/17 year olds to study for certain educational qualifications;
- time off during notice of redundancy to seek new work;
- time off to perform duties as a pension fund trustee;
- time off to perform duties as a health and safety representative;
- time off to perform duties as an employee representative;
- time off to accompany another worker to a disciplinary or grievance hearing where the right to be accompanies applies;
- time off to perform certain public duties – including service as a Justice of the Peace or a member of a local authority or statutory tribunal;
- time off while suspended.
Although there is no law that specifies that an employee is allowed to have leave from work for jury service the effect is the same because subject to certain exclusions most employees are liable to serve as jurors and failure to do so is contempt of court. Dismissal for taking time off for jury service would be unfair dismissal.
Absence Due To Sickness
Apart from holidays or other statutory leave, the most common reason for an employee being absent from work is time off because the employee is sick. An employee who takes time off claiming to be sick when they are not sick will be guilty of misconduct and subject to discipline and even dismissal.
Most employers have terms in their contracts or procedures that specify the way in which an employee must report sickness. The contract of employment should provide whether an employee would be paid when off sick. If it does not provide any period of paid sickness then the only obligation is to pay Statutory Sick Pay.
Long-term sickness may prevent an employee’s capability to do their job and entitle their employer to terminate the employment. To avoid such a dismissal being unfair the employer should follow a fair procedure and obtain evidence about the employee’s capability either from the employee’s own doctors or by arranging an examination by an occupational health specialist.
Only when there has been consultation with the employee and consideration of alternative employment can a decision that the employment is brought to an end be made. Where the sickness is likely to last for 12 months or more, or otherwise amounts to a disability as defined by the Equality Act, then the employer must avoid discriminating against the employee, and consider all the reasonable adjustments that can be made to enable the employee to continue working or return to the workplace in the future.
Compassionate Leave Of Absence
In the event of a member of an employee’s family who lives with them, being taken suddenly ill, then leave to make arrangements to care for them may be taken under the right for time off to care for dependants. However this is not applicable to non-dependent members of the family or for non-emergencies.
An employer who dismissed someone simply because they took time off to care for a relative taken ill or because of the death of a relative would be acting unfairly, but equally there is no right to take leave on bereavement unless it falls within the right to take time off to care for dependants or to Parental Bereavement Leave (PBL).
There is no right to be paid for such leave either (unless for eligible employees under the right to PBL). Taking time off to arrange a funeral and to attend it falls within the right to leave to care for dependants where the deceased is the employee’s spouse, partner, parent or other family member who lives in their household.
Enforced Absence Due To Arrest Or Prison Sentence
If someone is arrested and held in custody or receives a prison sentence they will obviously not be able to attend their work, and their employer may find such an event entitles them to dismiss the employee for gross misconduct.
Alternatively, it will automatically bring the contract to an end because it is frustrated by the impossibility of the employee performing their part of the contract. This will almost certainly be the case if the employee is sent to prison for a substantial period.
Bishopsgate Law employment lawyers provide independent legal advice about employment settlement agreements, and represent employees and employers at Employment Tribunals.