Differing types of leave
12 February 2018
This article was featured in the March 2018 issue of the magazine.
You may be familiar with leave such as annual and maternity but what about the less common types? Jill Smith MCIPPdip, CIPP policy manager, discusses those that employers may not often encounter
Qualifying employees are allowed reasonable time off to go to meetings or carry out duties. The amount of time off must first be agreed with employers; however, the law does not specify a set amount of time and employers will be allowed to refuse time off if deemed unreasonable. What may be classed as reasonable will depend on:
what duties are carried out
the time needed to carry out the duties
the impact on the business
how much time the employee has already taken for public duties.
The following do not qualify for paid time off:
members of the police service or armed forces
civil servants, if their public duties are connected to political activities (restricted under their terms of employment)
those employed on a fishing vessel, gas or oil rig at sea.
All jurors are selected at random by computer from the electoral register with anyone between age 18 and 70 included even if not eligible to serve. Jury service is a public duty so unless someone is disqualified, has the right to be excused or has a valid reason for discretionary excusal.
Employees should tell their employer as soon as possible that they have been summoned, when they will need time off and, if possible how much. If they are not needed at court they should return to work unless something different has been agreed with their employer.
There is no statutory obligation on the employer to pay for any period of jury service. Most employers will simply complete a loss of earnings certificate which is used by the court to calculate the daily financial loss allowance to pay the employee.
In some workplaces it is in the contract of employment that the employer will provide payment for the difference between the daily financial loss allowance and the pay which they would have received from the employment had they not been absent from work.
Though legislation does not give employees an absolute right to time off from work to undertake jury duties, it does give them protection from the right not to be dismissed or treated detrimentally because they serve on a jury. The employees also have the right not to be selected for redundancy, where the reason is connected to their jury service.
Reservists can be called up to supplement the regular armed forces when required and are attached to any of the services within the Volunteer Reserve Forces – namely, the Royal Naval Reserve, Territorial Army, Royal Marines Reserve and Reserve Air Forces.
Reservists have a duty to undertake training and to report for active service if they are called up and their tour of duty may last up to twelve months. However, on average, the time commitment of a reservist is between twenty and fifty days.
If the employee is obliged to report for duty, the employer can apply for a deferral or an exemption where the employee’s absence would cause serious harm to the business or undertaking.
Employees do not have any entitlement to take time off work to fulfil their training commitment as a reservist, except where their employer has entered into an agreement with either the secretary of state for defence or the employee, for example in agreed contractual terms and conditions permitting time off.
The reservist is afforded certain employment protection rights from the point of receipt of call up papers to the point of mobilisation: right to reinstatement after demobilisation; right to continue to participate in their employer’s share option schemes. It is an offence for employers to terminate the employment without the employee’s consent solely or mainly because the employee has a liability to be mobilised.
For the duration of a tour of active service, reservists can choose to continue making pension contributions to their occupational pension scheme, with the Ministry of Defence also contributing the employer’s portion.
There is no statutory requirement for employees to be paid by their employer for the time off for reservist duties or training. For more information visit http://bit.ly/2cfshQR.
Employees who undertake public duties for an office or as a member of a public authority or body as defined in legislation, are to be permitted by their employer to take time off for performing the duties of the office (such as a justice of the peace, school governor). Employers may pay employees for this time off but are under no statutory duty to do so.
Trade union officials
Employees are entitled to reasonable time off to undertake trade union duties or for the purpose of acting as a union learning representative. They must be a member or official of an independent trade union recognised by the employer. The scope of duties does not extend to include involvement in industrial disputes and there are no age or service requirements. Employees are paid normal pay for the time off.
There isn’t a legal definition of ‘reasonable time off’ but things to take into account comprise: the kind of work the business or organisation does; workloads; needs of line managers and co-workers; importance of health and safety at work; amount of time off reps have already had for trade union work.
Be mindful of the difference for employees who are members of a trade union. They are entitled to take reasonable time off to undertake certain trade union activities that include the participation in trade union conferences and committees, and the attendance at meetings for discussing and voting on negotiations with employers. However, there is no statutory requirement for employees to be paid by their employer for the time off.
Full details can be found at http://bit.ly/2DHqsY0, and in an ACAS code of practice (http://bit.ly/2nXQ5wA).
Accompanying employees to meetings
An employee is entitled to a reasonable amount of paid time off for accompanying a workplace colleague (‘companion leave’) at a meeting that is being held either as a discipline and grievance hearing or for an application to work flexibly. Employees are entitled to be paid normal pay for such companion leave.
To be eligible the employee must work for the same or an associated employer as the employee in respect of whom the meeting is being held. This right extends to assisting the employee in preparation for the meetings; however, this is only for disciplinary and grievance proceedings and not for flexible working applications.
For further guidance see ACAS guide athttp://bit.ly/2nXQ5wA.
Employees are able in certain circumstances to elect or appoint representatives (called ‘negotiating representatives’ for certain purposes) to participate in consultations and negotiations with their employer as prescribed by the following legislation:
- Occupational and Personal Pension Schemes (Consultation by Employers and Miscellaneous Amendment) Regulations 2006
- Trade Union and Labour Relations (Consolidation) Act 1992
- Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE)
- Information and Consultation of Employees Regulations 2004.
The circumstances include a redundancy situation involving more than twenty employees within a ninety-day period or transfer of an undertaking within the scope of TUPE. Employees who are either an employee representative or a candidate are entitled to take reasonable time off during normal working hours to perform the functions of an employee representative or a candidate or undergo training to perform such functions.
Payment is at the appropriate hourly rate, which is derived from a ‘week’s pay’.
Safety representatives are either appointed or elected to undertake certain functions as defined under health and safety legislation.
Trade union appointed safety representatives are entitled to paid time off to perform their statutory functions and to undergo training. The amount of time off for training must be reasonable.
Elected safety representatives are entitled to paid time off to perform their functions and to undergo training. A candidate in an election to be a safety representative is entitled to paid time off to perform the functions as a candidate.
Employees who are safety representatives are paid normal pay for the time off in respect of their duties.
An employee who has been given notice of redundancy is entitled to take reasonable time off to look for work or to arrange training. To be eligible employees must have been given notice of redundancy and have at least two years’ continuous employment with their employer, by the later of the date when either the employee’s notice ends, or the statutory minimum period of notice ends.
The employee is to be paid for time-off at the appropriate hourly rate derived from a week’s pay. However, the employer is not liable to pay more than two-fifths (forty per cent) of a week’s pay regardless of the time-off allowed.
Study and training
Staff may have the right to ask for time off work for training or study. To be eligible they must be classed as an employee and have worked for their employer for at least 26 weeks, and there must be a minimum of 250 employees working in the organisation. The training must enable the employee to improve in their role.
Time off is usually unpaid unless the employer agrees to pay it.
The following employees cannot ask for time off:
an agency worker
in the armed forces
of compulsory school age (‘school age’ in Scotland)
a young person who’s already got the right to take paid time off for study or training
aged sixteen to eighteen and already expected to take part in education or training.
If there is nothing in the company’s contract for requesting time off then employees should write to their employer saying it’s a request ‘under section 63D of the Employment Rights Act 1996’.
For further advice use the link: http://bit.ly/2xzeQab.
Mother’s entitlement – The mother’s entitlement to antenatal care leave is a separate right to maternity leave and is conferred by general employment law. It is usual for the pregnant employee to attend her first antenatal clinic between the eighth and twelfth week of pregnancy. Unless there are complications the frequency of her visits will increase from monthly to fortnightly and then, in the final stages, to weekly.
There is no limit to the amount of time off that the employee can take for antenatal care. In all cases, the amount of time allowed must be adequate for the employee to attend the appointment. The employer may reasonably refuse to allow the employee to take the time off, but it should be noted that what is reasonable in one set of circumstances for one employee may not be reasonable in another set for a different employee. For example, voluntary attendance at relaxation classes might be unreasonable, whereas attendance on medical advice would be reasonable. The employee is paid at her normal hourly rate for the time off.
Partner’s entitlement – Relevant employees have the right to unpaid time off to accompany a pregnant woman to up to two antenatal appointments, capped at 6.5 hours for each.
To qualify for this entitlement, the employee (or qualifying agency worker) must be: the baby’s father; or the expectant mother’s spouse, her civil partner, or partner (of either sex) in an enduring relationship; or the intended parents of a child in a surrogacy arrangement if they expect to be entitled to and intend to apply for a parental order in respect of that child.
There is no qualifying period for this entitlement for employees. A qualifying agency worker must have been doing the same kind of work for the same hirer for at least twelve weeks.
Though the employer is not entitled to ask for evidence of the appointment from the partner because that belongs to the mother, the employer can ask the employee for a signed declaration.
A maternity suspension occurs if a risk assessment indicates that the employee’s continued attendance might damage her, or her baby’s, health and:
a temporary adjustment of her working conditions and/or hours would not be reasonable or feasible, or
there is no suitable alternative work available or it is not feasible for her to do the work.
There are no eligibility criteria to be met by the employee other than that she is pregnant, has recently given birth or is breast-feeding.
The period of maternity suspension lasts for as long as necessary to remove the risk of damage to her or her baby’s health. The period of suspension is with pay, unless the employee unreasonably refuses alternative work. Where the employer suspends an employee from work because her health, or that of the baby, is at risk, she is to be paid for each complete week suspended (or proportionately for part weeks).
Levels of pay
The level of pay prescribed by legislation for many of the statutory absences outlined above is either an hourly rate or normal pay; and the two are fundamentally different.
Normal pay – This is the amount that the employee would have received had they worked normally instead of taking the leave or time off. However, it should be noted that payment in respect of overtime is adjusted so that it is at the basic (flat) rate. Where the employee’s earnings vary, the amount to be paid is calculated by reference to the employee’s average hourly earnings. If these cannot be estimated the earnings of a comparable employee can be used; or, failing that, the payment that is reasonable in all the circumstances.
Average hourly rate of pay – This is defined as the total number of hours worked in the relevant twelve-week period divided into the pay due for those hours which is not the payments made in the twelve-week period. This differs significantly from the rules used in calculating average weekly earnings for, say statutory maternity pay where the payments made in the relevant period are more important than the payments due for the period. The pay due for the period will include the apportioned value of bonuses and commissions but not any premium payments for non-contractual overtime.
Another factor to consider is what the other payments are for because they are only included in the calculation if they are for work performed. Payments, e.g. for attendance, would be excluded and if the payment is for an extended period, it must be apportioned so that only the sum due for the period in question is included in the calculation.