Leave of Absence (Employers’ Guide)

Leave of absence is a period of time when an employee is away from the workplace during contracted hours but they are not working and remain employed.

There are many reasons why an employee takes time off work, which will impact how long they are away from work and should determine how the employer should manage the absence. For example, most employees have a statutory entitlement to holiday and sick leave, while the rules on sabbaticals or unpaid leave are less straightforward and require more discretion and consideration by the employer. Absence can also become an issue where it becomes excessive and requires management.

For employers, the length of absence will be a determining factor for employers managing the absence.

Short-term time off

Short-term absence is generally classed as time off, such as a day booked out of the office to attend a child’s nativity play, for example. Even longer periods of annual leave can be branded as time off, because such absences can be planned around in advance, and are therefore seen as manageable.

In order to minimise short-term absenteeism, you could consider implementing return to work interviews to help identify any problems early on so they can be addressed before becoming a major issue. Disciplinary procedures are very effective when dealing with unacceptable and repeated absence, or the use of absence data to trigger pay restrictions and attendance reviews. Of course, before using such sanctions, an employer should try to resolve the root cause of the issues at the very least.

Unpaid leave

An unpaid leave of absence can be used if the employee’s time away from work is not covered by existing sickness leave, paid annual leave, or other allowable time off, such as bereavement or paternity leave. Although unpaid leave does not provide the employees with wages, it ensures continuity of employment, which may be important in relation to employer-paid benefits, for example. Essentially, a leave of absence maintains their employee status.

There is very little law surrounding unpaid leave, and there is no minimum or maximum employee entitlement to unpaid leave from work. The legislation most employers refer to in these cases is the Employment Rights Act 1996. Even then, the law depends on the reasons for wanting to take the unpaid leave. Most rules relating to unpaid leave tend to be encompassed in employment contracts. This means that the employee may or may not have a contractual right to take unpaid leave. It really is a matter for you to determine at the outset.

Interestingly, there is scope for an employer to force an employee to take unpaid leave. Perhaps there is not sufficient work to go around, for example. If you want to lay an employee off, you must already have established a contractual provision within their employment contract. If a contractual right to lay off is in place, there is no limit as to how long you can lay them off for. However, if they have been away from the workplace for 4 weeks in a row, or six weeks within a thirteen-week period (no more than six consecutive weeks), the employee can apply for redundancy pay and resign their position.

Long-term leave of absence

A career break or parental leave are types of valid leave of absence; an employer may also allow staff to take unpaid sabbaticals or career breaks. This is where an employee remains within their employment whilst on unpaid leave.

A relatively small amount of long-term absence can account for a huge percentage of a business’s total absence. In such cases, it is useful to have a formal return to work policy, which aims to rehabilitate staff, enabling them to return quicker. Your policy may include things like regular reviews with ill employees, planning any necessary workplace adjustments, which could involve occupational health professionals.

Understanding absence

Absence management helps you strike a balance between supporting your staff and ensuring their wellbeing and taking firm action against absence abuses. There are a variety of methods that can help you to measure employee absence, how it affects your business, and manage it effectively.

Employee absence falls into three main groups. Authorised absence includes family, annual, and educational leave and tends to be managed via the employee’s contract. Both short- and long-term sickness are generally the principal concern of absence management policies. With minor illnesses, the highest cause for concern for businesses. However, around a quarter of businesses state non-genuine sickness absence is an issue.

Unauthorised absences include repeated lateness that eats into the working day or situations where the employee is sick but fails to follow the appropriate notification procedures. The fact they have failed to notify you means they do not have authorisation for the period they are away from the workplace. Persistent offences can generally be dealt with as a conduct issue.

Measuring lost time

If you measure the lost time to the business, it enables you to understand the cause and extent of absence issues and its impact on the business. Measurements can include using the lost time rate mechanism (the percentage of possible working time lost to absence), the frequency rate (the average number of absences per employee), and the Bradford Factor, which is a method of identifying an individual’s persistent short-term absence.

Creating an absence policy

A clear policy will help your employees to understand their sickness rights and responsibilities. Rules surrounding sick pay and leave are part and parcel of your employment terms and conditions, which means you are legally obliged to let employees know about them.

Absence policies can also be used to support any absence goals you have, and often include rules for how staff notify their line manager about absence, when self-certification forms and fit notes are required, and return to work interviews happen. You might want to consider how you intend to support your employees to return to work and whether they need any adjustments to help with their transition back into the workplace. Staff expectations around severe weather and other major events may require additional protocols. The bottom line here is that when employees know what you expect as an employer, they know where they stand and are more likely to follow the rules. And if the rules are broken, you have appropriate policies and procedures in place to deal with it.

Managing absence at work

As we have already mentioned, absence from work is terribly disruptive, and at best, leads to a decline in productivity. Managing absence appropriately is the difference between understanding time off and relentlessly pursuing a culture of disciplinary action.

But there are ways to avoid such actions, which include introducing things like:

Duvet days: these are essentially soft versions of sick leave, where employers allot a number of such days per employee per year. It allows the employee to take time off for matters not related to an illness and are sometimes referred to as mental health days.

Incentivising non-absences: it may be worthwhile to consider ways of making employees want to avoid absences. Some organisations provide compensation, such as an extra day’s holiday, for members of their staff who do not take any sick days throughout the year. However, the risk here is that those employees who are genuinely ill do not call in sick, and you may fall foul of discrimination legislation. This is why it is vital to implement safeguards and put wide ranging rules in place which take existing employment laws into account.
Flexible working: for those employees who persistently arrive late, which is then marked as a period of absence, it may cause an employee to call in sick to avoid the situation arising. Offering flexible working can help to alleviate such issues, improve an employee’s life and, in turn, prevent absences occurring.

Unauthorised absences from work

Not all leave of absence is valid. Excessive absence such as that amounting to more than the number of days’ annual leave granted probably comes into this category. However, most employers will have their own ideas as to what constitutes excessive absenteeism. It is common for around eight incidences of unauthorised absence within a 12-month period to warrant termination of employment. Although this may vary, depending on the employee’s contract.

Adding in sick leave, frequent days at home or leaving work to visit a GP regularly, absenteeism can quickly become problematic. But these incidences may be considered the only time continued absence from the workplace can be valid, otherwise, such behaviour is likely to amount to multiple absences. Persistent and excessive absence from work can present as the grounds for misconduct.

Absence management and the law

Any approach should dovetail with the relevant law including the Employment Rights Act 1996, Equality Act 2010, Access to Medical Records Act 1998, the Data Protection Act 1998 and the Working Time Regulations. For example, if an employee becomes disabled, you may need to make reasonable workplace adjustments so that you do not discriminate against them.

This slew of legislation covers employees taking a leave of absence for helping dependants and in relation to their rights under statutory sick pay. By law, anyone classified as an employee has the right to take time off to assist someone who depends upon them for an unexpected or emergency situation.

The law states that employees can take unpaid leave to assist someone that is dependent on them. Rights under statutory sick pay or regarding fit notes may be included or enhanced by an employee’s contract. Clauses might include how long the sickness pay will continue, the rate it is paid, and any particular rules the employer has surrounding sick pay.

In exceptional circumstances, an employee may be absent from work for an enforced reason. This could be because of an arrest or because they have received a long custodial sentence. This may not necessarily be related to their employment. In this case, it may bring about an end to their employment contract and may also be grounds for a fair dismissal.

Legitimate reasons for a leave of absence

There are always legitimate reasons for an employee to be away from work. These include:

• Time off for medical appointments/treatment
• Time off for paternity, maternity or adoption
• Time off to care for dependents and members of the family
• Time off to attend public duties, such as magistrates’ duty or jury service
• Time off in order to accompany colleagues to grievance or disciplinary hearings

Before requesting leave, employees should check whether they are eligible. This may be simply asking if there are sufficient colleagues to cover their absence. That said, employers could make it easier by including eligibility for leave of absence in their employment contracts.

The unpredictability of staff absence can make running a business a real challenge, but by employing a variety of methods, you can learn how to manage absence effectively.

Need assistance?

DavidsonMorris’ HR and employment law specialists work with employers to support with compliant and effective workforce management, including advice on employee entitlement to time off work.  Contact us for specialist advice.

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Last updated: 16 November 2021