If a member of staff requests unpaid leave to take a short career break, should this be given the same consideration as someone called up for jury service?
Unpaid leave is where an employee takes time off from their job without pay. Although it sounds simple enough, there are some circumstances where employees have the statutory right to take unpaid leave or where the employer is compelled by law to consider unpaid leave requests.
In other cases, decisions about granting unpaid leave are entirely at the employer’s discretion.
This guide aims to provide UK SMEs with key information on how to approach unpaid leave within your organisation and what to be aware of.
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Navigating the complexities of unpaid leave as an employer can be tricky. In general, there are 3 main categories to consider.
- Statutory Unpaid Leave
This is unpaid leave you're legally obliged to grant to an employee, and applies to the following circumstances:
- Parental leave, subject to certain conditions being met
- Jury service
- Public duties, such as serving as a magistrate
- Time off for family and dependants
Discretionary Unpaid Leave
This involves unpaid leave requests that you are compelled by law to consider, though you are not obligated to grant them.
If employees meet certain specific criteria, a request for training or study must be considered under the Employment Rights Act 1996.
Whilst it's essential that you take these requests into consideration, you ultimately have the final say about whether it's feasible for your business.
Optional Unpaid Leave
Some categories of unpaid leave are entirely optional and at the employer’s discretion, meaning you have the right to refuse. If leave is given, the amount of time off is also up to the employer.
Employees might request unpaid leave for personal reasons such as compassionate leave, taking a sabbatical or career break, or appointments with the doctor or dentist. However, if the employee is pregnant, you must allow paid time off for ante natal appointments.
If an employee is disabled or has a long-term health condition, an employer must make reasonable adjustments for time off for related medical appointments.
In some cases, employers may choose to grant the time off and still pay the employee.
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Let’s look at statutory unpaid leave in more detail.
Unpaid Parental Leave
Eligible employees are entitled to 18 weeks’ leave for each child and adopted child, up to their 18th birthday. This is to look after their child's welfare, which could include spending more time with them, settling them into new childcare arrangements or looking at new schools.
Unpaid parental leave is subject to eligibility criteria and employers can ask for reasonable proof.
Parental leave is usually taken as whole weeks, up to four weeks per year for each child. Part time and irregular working hours are calculated on a pro rata basis.
This leave applies to the child and not to the employee’s job, so they carry over what’s left of the entitlement to their new employer rather than starting the full entitlement again.
Employers can postpone this leave for a maximum of 6 months of the requested start date but only under certain circumstances.
Agency workers and contractors do not have the right to apply for parental leave.
Shared parental leave
Eligible parents have a statutory right to share time off work for caring responsibilities after the birth or adoption of their child. This helps them combine work with family life.
Most of this leave is paid, however a proportion of the full time allowable can also be taken as unpaid leave.
Parents can get up to 50 weeks of shared parental leave, with up to 37 weeks shared parental pay. The remaining 13 weeks of shared parental leave is unpaid.
Unpaid time off for public duties
In addition to their normal holiday entitlement, some employees can get time off work for certain public duties.
Under the Juries Act 1974, employers must allow an employee time off work when they are summoned to serve on a jury. You must allow them time off for as long as they are required to serve. A loss of wages allowance will be paid by the court, so you do not have to pay them during this time unless you choose to.
Magistrates are required to be in court at least 13 days, or 26 half-days a year, so by law they must be allowed ‘reasonable’ time off work to carry out their duties. You don’t have to pay them during this time, but many employers do.
Some other examples where an employee can get a ‘reasonable’ amount of unpaid time off work include:
- Local councillor
- School governor
- Trade Union member
This time off should be agreed with your employee beforehand. You can refuse a request for time off if you think it’s unreasonable – for example, due to the impact on your business.
Some staff, such as agency workers, police or armed forces, don’t qualify for time off for public duties.
Time off to help a dependant with an emergency
Under the Employment Rights Act 1996, an employee is allowed a ‘reasonable’ time off to deal with emergencies.
A dependant is a close family member or someone who depends on the employee for care.
There are no limits on how many times this unpaid leave can be taken. You can choose to pay the staff member during this time off, but you don’t have to.
Carers Leave Act – looking ahead
A new statutory right to carers leave is being introduced into England, Scotland and Wales. The most likely implementation date is April 2024.
The Act gives employees the right to request and take one week of unpaid leave per year for caregiving purposes.
This will be a ‘Day 1’ right, meaning it’s available to employees no matter how long they’ve been in the workplace.
Clear workplace policies
For rights that are not set out in law, it’s important to have policies in place regarding unpaid leave that are based on the needs of your organisation. This ensures transparency across your business and helps managers make decisions that are fair to everyone in the team.
Even when you have clear guidelines in place, managerial discretion and flexibility should still be a consideration as much will depend on an individual employee’s unique circumstances.
WorkSmarter’s advanced online platform is not just about holiday and absence management, and companies of all sizes rely on our guidance to know they’re doing the right thing for their employees.
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