Bereavement Leave - Employers Rights

Peninsula Team

March 31 2013

Part of life, unfortunately, involves dealing with family emergencies. When tragedy such as the death of a loved one occurs, an employee may ask for time off work and although the Employment Rights Act 1996 allows unpaid time off to make necessary arrangements following bereavement, it does not permit extended time off to grieve. Statutory time off or ‘time off for dependants’ has a number of conditions which should be met to determine an employee’s eligibility for it. Firstly, the dependant must be the employees’ spouse/partner, child, parent or someone else reliant on their provision of care; and secondly the length of any time taken off should be reasonable. Case law has confirmed that a reasonable period of time will vary depending on actual circumstances, however when considering a bereavement, and that allowance should be made for arrangements in addition to those of the funeral provided they are related to the death e.g. registering the death. Although there is currently no statutory right to time off work to grieve within the UK, employees may feel they require further time to mourn. Where this occurs, employers may have non-statutory arrangements which enable an employee to take time off to grieve, such as a policy of offering a period of compassionate leave, either paid or unpaid. If existent these procedures would normally be included within employment contract terms or staff handbooks. Examples of compassionate leave agreements include:
  • X days paid time off
  • X days unpaid time off
  • X days paid followed by X days unpaid
  • A clause to the effect that individual’s reactions vary greatly so paid time off will be at the manager’s discretion and specific to each unique circumstance.
If a compassionate leave policy is based on an understanding such as the last of these, employers should be careful not to discriminate, either intentionally or unintentionally, on any of the protected characteristics contained within the Equality Act 2010. Similarly consideration should be made for employees of an ethnic minority, or those not originally from the U.K. and whom may need to travel abroad to make arrangements and/or attend a funeral. Employers should be flexible in circumstances such as these and have discussions with the affected employee to determine how any extended time off will be classified. Outside of the above possibilities, other options for time off to grieve do exist. Employees may be able to use holiday entitlement, time in lieu or obtain confirmation from their GP that they are not fit for work. It may be that a combination of the different options are used for employees. The slow but sure return of an employee may ultimately improve the employer-employee relationship and help to avoid any complaints from what an employee may regard as harsh treatment. It is also imperative that contractual entitlements are adhered to in order to avoid breach of contract claims. By Nicola Mullineux For any further clarification, please call our 24 Hour Advice Service on 0844 892 2772.

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