Introduction
Family leave

Time off for dependants
Parental leave
Parental bereavement leave
Time off for other reasons
Filling in the gaps
Leave for unpaid carers
Baby loss
Support for parents of babies in neonatal care
Fertility treatment
Sabbaticals, career breaks and flexible working requests
Comment


Introduction

The pandemic required many people's personal and working lives to coexist in a way that they never had before. Caring responsibilities had to be accommodated alongside working life and the distinction between home and the workplace became blurred. However, this has always been, and remains, a juggling act.

Accommodating personal responsibilities, emergencies and obligations alongside working life can be both logistically and legally complicated. A person who brings their "whole self" to work means being authentic and honest in the way that they present themselves in the workplace – but what about the more tangible challenges of this? Can employees in the United Kingdom really take time off when they need to and take the necessary steps to accommodate personal and family commitments? The law in the United Kingdom does address some of these needs but is neither comprehensive nor straightforward. While EU member states are in the final stages of implementing the Work-Life Balance Directive, proposed legislation, such as carer's leave and reform of the flexible working regime, was notably absent from the Queen's Speech in May 2022.

Where does that leave a person's ability to bring their whole life – or more specifically, their whole family life – to work? This article provides an overview of how much the law helps or hinders this balance by looking at the existing rights to personal and family leave and the gaps that employers are left to fill.

Family leave

The core rights relating to family leave – maternity, paternity, shared parental and adoption leave – are at the heart of how employers must accommodate their employees' personal lives when they have a child.(1)

Time off for dependants

The childminder has covid-19. An elderly parent urgently needs taking to hospital. There has been an unexpected family tragedy. Situations like these are likely to necessitate time out of work during the working day at short notice. Although they may fall within the provisions of a company policy permitting staff to taking time off to deal with emergencies, there is an underlying legal right for employees (irrespective of their length of service) to take unpaid leave in certain circumstances. Failing to permit an employee to exercise this right could give rise to a number of potential tribunal claims, including constructive unfair dismissal or a discrimination claim.

This right to a "reasonable amount" of time off is available in order to take action that is necessary:

  • to provide assistance on an occasion when a dependant falls ill, gives birth or is injured or assaulted;
  • to make arrangements for the provision of care for a dependant who is ill or injured (not to provide care itself);
  • on the death of a dependant;
  • because of the unexpected disruption or termination of arrangements for the care of a dependant; or
  • to deal with an unexpected incident involving the employee's child while they are at school.

Under these provisions, "dependant" is defined as:

  • an employee's spouse or civil partner;
  • child;
  • parent; or
  • a person who lives in the same household as the employee (otherwise than by reason of being their employee, tenant, lodger or boarder).

Time off for dependants is focused on "taking action" (ie, dealing with logistical matters). For example, time off to "provide assistance" to a dependant is intended to cover the immediate aftermath of emergencies. While it can cover putting in place arrangements for the provision of care, it is not intended to be used to provide that care itself. Indeed, case law shows that the right to time off in these circumstances does not extend beyond dealing with the immediate crisis. Similarly, the right to take time off on the death of a dependant is not a right to compassionate leave per se but to deal with logistical matters.

With the exception of assisting with a birth, this right is intended to deal with unexpected emergencies. However, drawing this line is not always straightforward. For example, would the relapse or the deterioration of a dependant's existing medical condition be "unexpected"? This is likely to come down to the particular facts. And does an event such as disrupted childcare arrangements stop being "unexpected" after a few days or even a week? No, say the courts, but the timescale could be relevant to the question of whether it was really "necessary" for the employee to take time off or whether the amount of time taken was "reasonable".

On this point, the legislation includes no time scales or maximum periods of leave. This puts employers in an uncertain position when determining what is "reasonable", particularly as disruption or inconvenience to the employer would not weigh into the balance. Although the notice requirements in the legislation are not detailed, open and empathic lines of communication will certainly minimise the risks of a dispute arising. A clear policy would help manage employees' expectations and ensure that employees understand the notification requirements. As will be shown later, other types of leave may in fact be more appropriate, and there would be value to both parties in signposting these to employees.

Parental leave

While time off for dependants may address urgent and short-term needs, parental leave is a perhaps underused right, more suited to longer-term planning.

The right to parental leave gives employees with 12 months' continuous service the right to request unpaid leave to care for children under the age of 18. This covers birth or adoptive parents or anyone who assumes parental responsibility for a child. The entitlement is quite substantial, giving parents' 18 weeks' leave per child, with the right to take up to four weeks' leave per child per year, which must be taken as whole weeks. In the case of a child with a disability, shorter blocks of leave are permissible. The key disincentive, of course, is that this leave is unpaid and exercising the right to its full extent could be extremely costly for an employee.

In terms of procedure, the employee must give the employer 21 days' notice, setting out the dates on which they wish to begin and end the leave. An employer cannot refuse or alter this request but can postpone it if granting the leave would unduly disrupt the operation of the business (although this limited veto power does not apply to requests upon the immediate birth or adoption of a child). A request for postponement would need to be made promptly and in consultation with the employee.

Does this right therefore plug the shortcomings of the right to time off for dependants, by allowing for more than the bare minimum of "reasonable" time off in the situations addressed above? When the notice requirements and employer's ability to require a postponement are taken into consideration, it is clear that it is not addressing the same need.

While a company policy could not detract from this statutory right, a more flexible policy could benefit both the employer and employee. The ability to purchase extra annual leave, for example, would potentially address the same need for extra time off for childcare. This would enable employees to spend additional time with their children but would not carry the potentially unwieldy minimum week's leave requirement. Further, a holiday purchase scheme would apply to all staff, not just parents, increasingly important as work-life balance is a universal focus and priority.

Parental bereavement leave

Many employers operate a compassionate leave policy, and this would certainly help an employer to provide the kind of sensitive and structured support that is so valuable in such difficult times. However, the scope and terms of these policies can vary hugely, reflecting the minimal legal rights to time off on compassionate grounds.

The year 2020 saw the introduction of parental bereavement leave (2022 in Northern Ireland) and this, in fact, constitutes the only statutory right to compassionate leave. This allows parents who have lost a child to:

  • take two weeks' paid leave upon the death off a child aged under 18, or a stillbirth (from 24 weeks of pregnancy), irrespective of their length of service; and
  • receive statutory pay (currently £156 a week) or 90% of their normal weekly earnings, if lower, provided they have 26 weeks' service prior to the death of the child (for further details please see "Introduction of paid parental bereavement leave confirmed").

Time off for other reasons

A person who brings their "whole life" to work does not only mean dealing with crises and emergencies – the law does provide for duties outside of work and family in some circumstances. There is no general right to time off for public duties, but employees have the right to take some unpaid time off during normal working hours for a range of public roles including membership of a local authority, certain health and education boards.

While the amount of time requested must be reasonable, and the impact on the employer's business is relevant here, the circumstances in which time off can be taken are quite broad. For example, time can be taken to attend a meeting or do any other thing approved by the body to discharge its functions.

Jury duty is something over which employees have limited choice. There is no specific right to take time off for this duty, but employees are protected from being subjected to a detriment, or from being dismissed, as a result of being summoned or being absent from work as a juror. Notably, employees will lose this legal protection if they fail to be excused or to request for the service to be deferred when their employer has brought the potential harm their absence could to do the business to their attention. If the summons remains effective, however, the employee must be permitted to take leave.

There is also a right for employees who are members of the reserve forces to take leave.

Filling in the gaps

As mentioned, the law in this area by no means addresses every eventuality, and many of the gaps are quite glaring omissions. Earlier in 2022, timely reform in a number of areas looked to be on the cards, but the notable absence of the Employment Bill from May's Queen's Speech in Great Britain has cast this in uncertainty. It remains to be seen whether this bill has died, or simply gone into hibernation, but the imminent changes at the heart of government add further uncertainty.

Leave for unpaid carers

One proposal that had broad parliamentary support and addresses an urgent need as social care is increasingly stretched, was leave for unpaid carers.

The Great British government had proposed that working carers would be able to take up to five days' unpaid carer's leave each year to help them carry out their caring responsibilities. The aim of the proposed leave would be to support those providing care for someone with a "long-term care need" and would not be limited to family members, extending to "a person who reasonably relies on the employee for care". While there are no similar proposals for reform in Northern Ireland, a change would likely be followed.

If this is implemented, it has the potential to benefit both employers and employees. With additional leave for caring needs, the productivity of those employees when at work is likely to increase. It would also have a positive effect on their morale and mental health. Employees with caring responsibilities are also likely to take fewer sick days in order to meet these obligations. However, this additional leave would be unpaid. In the current economic climate, this financial disincentive may be the deciding factor and limit how useful carer's leave is to employees.

Baby loss

It is estimated that, among people who know that they are pregnant, one in eight pregnancies will end in miscarriage (defined as the loss of a baby during the first 23 weeks of pregnancy). It goes without saying that this is a hugely upsetting time for both the mother and her partner and feeling supported in the workplace is of critical importance.

Although there is no legislation specifically focussed on miscarriage, there are rights that would be applicable in these circumstances. An employee suffering an early miscarriage who then took a period of sickness absence would have the normal sick pay entitlements applicable in her workplace. Alternatively, she may choose to take holiday. The mother's partner could in theory take time off to care for the mother, under the right to "provide assistance when a dependant falls ill". However, some of the uncertainty around the right to time off for dependants, and practical focus of this right does not sit easily with this common scenario.

This article has focused on the new right of parental bereavement leave in the United Kingdom, but this would only apply to parents of a baby stillborn after 24 weeks of pregnancy, at which point maternity and paternity leave rights would also be triggered. In Northern Ireland, the parental bereavement provisions are to be extended to include the loss of a child through miscarriage, but this is not expected to happen soon. Last year, New Zealand introduced a right to give parents three days' paid leave(2) in the event that they suffer a miscarriage (at any stage in a pregnancy) or a still birth. In Great Britain, two private member's bills in 2021 addressed this issue but neither progressed.

The Great British government has made no commitment to introducing paid miscarriage leave or to extending existing parental leave to cover losses earlier in a pregnancy. In the absence of a legal framework in the United Kingdom, employers are increasingly taking the initiative to address this through the introduction of a baby-loss policy. Such a policy may offer additional leave and pay to assist the employee to recover emotionally and physically and attend medical appointments. It may also outline what support is available to those employees who suffer a miscarriage at work and need immediate but sensitive help and support in the workplace.

Support for parents of babies in neonatal care

Consultation was launched in 2019 in recognition of the fact that current leave and pay entitlements do not adequately support parents whose babies need neonatal care for a number of weeks or months and the additional stress and responsibility that that entails. What is now proposed is effectively an extension of maternity and paternity leave in these circumstances: a new right of up to 12 weeks' paid leave.

Despite cross party support, this reform did not feature in the Queen's Speech in May of this year. However, the Great British government has recently has announced its support for the Neonatal Care (Leave and Pay) Bill, a private member's bill.

Aside from legal obligations, a number of large employers have signed up to an initiative under which they undertake to offer additional leave to mothers of babies born prematurely, which corresponds to the number of days the baby was born prior to their due date, and an additional two weeks' leave to their partners. Of course, the additional medical needs of children born prematurely are often likely to extend well beyond their due date, so an important element of a support policy will also be to support these parents in flexible working needs they may have in the longer term.

Fertility treatment

Another area that is not expressly catered for by legislation, but is of overwhelming importance to many employees, is fertility treatment. Individuals undergoing in vitro fertilisation (IVF) treatment have no statutory right to leave – either paid or unpaid. Unless their employer operates a policy that directly addresses how absence for fertility treatment will be treated, these appointments would be treated in the same way as any other medical appointments. Of course, time away from work is far from the only consideration in this situation. The associated physical discomfort for the mother, and the inevitable stress of the experience for both parents, is likely to impact on an employee's ability to work effectively.

Unlike some of the other topics that this article has focused on, there are no proposals for legislative reform in this area. In addition to fertility policies, employers are increasingly catering for fertility treatment via benefits packages, with some companies funding or contributing to the cost of IVF treatment, egg freezing and even surrogacy. At a time when the competition for talent is increasingly fierce, family planning perks may be the deciding factor for some employees. Employers will hope that this tangible and supportive measure will increase employee engagement

Sabbaticals, career breaks and flexible working requests

The pandemic has seen many people reassess their priorities and achieving a positive work life balance is perhaps more valued than ever. Although many companies do offer sabbaticals, these policies do not derive from a statutory right to this sort of extended break. For this reason, the terms on which a sabbatical is offered are likely to vary significantly. For example, what is offered in terms of duration, pay and even ongoing employment would be up to the employer. This is unlikely to be an area which will see legislative reform but will continue to be a policy of interest to both existing and potentially future employees.

Finally, while this topic has not been the focus of this article, the right to request flexible working(3) is an important means of balancing working and personal life. Such a request can be used for anything – be it accommodating work around health needs, childcare or even hobbies – and an employee currently requires a minimum of six months' service to make a request. Flexible working rights have been subject to government consultation in Great Britain, but reform in this area looks unlikely to be significant (for further details please see "Government releases long-awaited proposals for strengthening flexible working rights").

Comment

The law in this area provides a patchwork of rights; in order to provide that comprehensive "blanket" of cover needed by employees, employers have to fill in the gaps or enhance existing legal rights. Although some legislation has been proposed to meet the needs of the 21st century employee more holistically and comprehensively, it remains to be seen if and when these will come to fruition.

For further information on this topic please contact Rebecca Jobling, Laura Farnsworth or Jack Balmer at Lewis Silkin by telephone (+44 20 7074 8000) or email ([email protected], [email protected] or [email protected]). The Lewis Silkin website can be accessed at www.lewissilkin.com.

Endnotes

(1) Further information is available on maternity leave, paternity leave and shared parental leave.

(2) Further information is available here.

(3) Further information is available here.