Unpaid leave guide: Coronavirus

19 May 2020

With the coronavirus remaining a key issue for companies to face, you may have wondered if staff should take unpaid leave due to coronavirus.

Well, to answer this, we need to explore entitlement to unpaid leave in more detail. You’ll be aware of your employees right to take paid leave, such as a holiday. What you may not be aware of is their right to take a period of unpaid leave.

In fact, unpaid leave law in the UK dictates a variety of instances where individuals can take unpaid leave.

We explore this option over this guide. But if you need immediate support, you can contact us on 0800 028 2420. We also have guides on your business advice during coronavirus you can refer to assistance during this time.

What is unpaid leave from work?

Basically, this is where staff can take time off work, but they don’t receive any pay for it.

There’s little employment law surrounding the issue. In fact, under unpaid leave rules, some forms are a legal entitlement. While others are down to your discretion.

There can be a number of fair reasons for taking unpaid leave. Sometimes personal life responsibilities can affect your employees. It might be because of:

  • Kids.
  • A poorly pet.
  • Elderly parents requiring assistance.

The result is they may have to take time off work.

Let’s face it. Your employees would prefer to receive pay when they take leave from the workplace.

But when the world outside throws your employees a curve ball, they might need some unpaid time out.

It can be tricky for a company when looking at unpaid leave. Employee rights must always be borne in mind. 

Can an employer refuse to give unpaid leave?

Staff may ask for voluntary unpaid leave. UK law dictates that, aside from a number of circumstances that we’ll cover below, you don’t have to let staff take unpaid leave.

For example, if an employee has used up their holiday allowance and asks for additional unpaid time off, it’s entirely down to you if you permit this.

Can an employer force an employee to take unpaid leave?

Forced unpaid leave UK can take place. However, you must be very careful.  

As an employer, you can force an employee to take unpaid leave if there’s not enough work available for them—commonly known as laying an employee off.

However, your right to do this must be pre-established with a contractual provision in place. Without this, you’ll need to get your employee to agree to the change.

There’s no limit to how long you can lay-off an employee, but if they’ve been away from work for four weeks in a row, or six weeks within a 13-week period where no more than six weeks are consecutive, then they can apply for redundancy pay and resign from their position.

If the employee has worked for you for longer than a month, they may also have entitlement to statutory guarantee pay, which is currently £30 per day for a maximum of five days.

You should avoid asking staff to take unpaid holiday, coronavirus or otherwise.

How long can unpaid leave last?

The amount of maximum unpaid leave will ultimately depend on what it’s used for.

Any statutory right that staff have to take unpaid leave do come with certain limitations, which we will explore below.

In situations where you have let staff take unpaid leave and there is no statutory right for them to do so, there’s generally no right to indefinite unpaid leave.

So, it’s usually down to you how long leave should last in these situations.

Does annual leave accrue on unpaid leave?

As a member of staff remains employed by you during their unpaid leave, it’s likely they’ll continue to accrue their statutory entitlement to annual leave during this time.

This is 5.6 weeks per year for a full-time employee.

If your company provides contractual leave, you may consider not permitting this to accrue while staff are on unpaid leave.

However, you must outline this in a contract of employment.

Unpaid time off during coronavirus

You may have considered laying-off employees to facilitate unpaid leave due to coronavirus.

With the limitations to laying-off staff, as outlined above, it is advisable to instead consider usage of the government’s Job Retention Scheme, which has been set up to avoid companies having to make staff redundant during the coronavirus crisis.  

Unpaid leave to look after a child during coronavirus

Workplaces are reopening but schools remain shut, which may cause staff problems in facilitating childcare for any children still at home.

In these situations, they may be able to exercise their statutory right to time off for dependants.

This is perhaps the best form of unpaid leave. It entitles eligible employees to a ‘reasonable’ amount of time off to care for a dependant. And that’s normally a:

  • Child.
  • Relative.
  • Other individual who an employee provides care to.

What’s ‘reasonable’ isn’t defined in legislation. However, in reality, this is usually no more than two working days per instance.

And it simply allows the employee the freedom to deal with an emergency situation involving a dependant. 

This may be an unpaid leave of absence during coronavirus. However, it’s likely not to provide a permanent solution to staff with child caring issues.

Here, it’s advisable to consider ways you can assist the employee in returning to work, such as staggering their shifts or permitting them to work from home.

Another option could be parental leave.

Unpaid parental leave during coronavirus

Another form of this protected by legislation is the right to parental leave, which provides employees with the ability to take time off to care for their child.

This is available to parents who have a child under the age of 18 and have at least one year’s continuous service with their current employer. Eligible individuals are eligible to: 

  • 18 weeks of unpaid parental leave—that’s limited to a maximum of four weeks per year under the default scheme. And that’s for each child they have under the age limit.

Unlike time off for dependants, you have a limited ability to postpone requests for this leave to a more suitable time, providing there’s a valid business reason for doing so.  

Sick pay during unpaid leave

Usually, staff who are off work sick have no right to be paid for this time until their fourth day of sickness, unless their contract says different.

From day four onwards, they should receive, at least, statutory sick pay (SSP), currently £95.85 per week. 

However, new laws tell us that staff who are off work due to coronavirus should receive SSP from day one of their absence.

This includes those who have the infection or who are self-isolating in line with government guidance.

Staff who are ‘shielding’ due to high risk status from the coronavirus are also entitled to SSP from day one.

Unpaid maternity leave

You should remember that statutory maternity pay only needs to be paid for a maximum of 39 weeks, whilst maternity leave can last for a maximum of 52 weeks.

This means that a part of maternity leave can be unpaid, provided the contract does not say otherwise.

Need our help?

If you need assistance with unpaid leave, or employees taking time off during this time, you can contact us for support. We have a 24/7 helpline: 0800 028 2420

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