How to manage leave of absence

    leave of absence

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    How to manage leave of absence

    Every employee will, at some point in their career, need time off or a leave of absence from their employment, for one reason or another. Moreover, employees have a statutory right to take breaks from their employment whilst still maintaining their employment status. Managing leave of absence can be tricky for an employer and calls for different approaches depending on the circumstances. The uncertainty and unpredictability of staff absence can have a detrimental effect on a business; therefore, it is in an employer’s best interests to have a consistent workplace policy to help manage it effectively.

    This guide to leave of absence helps employers and managers understand their employees’ rights in taking a leave of absence and ensures they manage the situation in the best way possible.

    What is a leave of absence?

    A leave of absence is time that employees can take off from work in certain or exceptional circumstances. It is a break from their employment, which is either paid or unpaid, but which does not affect their employment status; they continue to be employed by the employer while on a leave of absence even though they are not working their contractual hours. A leave of absence can be short-term, or it can be a prolonged period of absence. Occasionally, it will be an unauthorised absence. There are numerous reasons an employee may wish to take a leave of absence, from standard sick leave and holiday entitlement to less common reasons such as for public duties or pursuing educational qualifications. The reason for the leave will determine the length of absence and how an employer will manage it.

    What are the different types of absence?

    Short-term absence is generally categorised as simple time off work, for reasons such as taking annual leave or taking an afternoon off for a medical appointment. Such short-term absence can be easily managed as it can be planned for in advance and would generally be paid time off.

    Longer-term absence is classed as a leave of absence, such as long-term sickness leave or maternity leave, which are both valid leaves of absence and would be covered under statutory or contractual pay; an employer may also allow an employee to take a career break or a sabbatical, which would usually be classed as unpaid leave, but the employee would remain in employment.

    Unpaid leave of absence can be used where existing statutory or contractual pay does not cover the time away from work, for example, where the employee has used all their holiday entitlement, where sickness leave extends beyond the statutory cover, or where a new parent decides to take a full year off work, and this is not financially covered in their employment contract. Whilst unpaid leave means an employee does not receive a salary while off work, it does ensure a continuity in employment.

    Other reasons an employee may wish to take time off or a leave of absence are for public duties or for duties as a health and safety official or employee representative or to accompany a colleague to a disciplinary hearing. Compassionate leave, which, under statutory law, gives an employee the right to take time off to care for dependants, may also be granted. Compassionate leave cannot be requested for non-dependants.

    An enforced leave of absence may occasionally arise where, for example, an employee is arrested, deported, or given a custodial sentence. Such leaves of absence will often lead to dismissal as they will constitute a breach of contract. Jury service is the one exception to this, as it is likely an employee would be held in contempt of court for non-attendance, and therefore an employer would usually grant a leave of absence under these circumstances.

    Authorised leave should generally be requested by the employee if possible, enabling effective management by the employer. In making a request, an employee should check the terms of their employment contract in assessing the eligibility of such a request, but also more simply should check with their employer whether there is sufficient cover from other colleagues in their absence.

    Authorised leave can be managed; it is unauthorised leave or excessive absenteeism which can be problematic for employers, and which is often managed as an issue of employee misconduct which can lead to disciplinary action and employment termination. It is common for an employer to allow no more than eight instances of unauthorised leave in a year before commencing disciplinary action, but this is at the discretion of the employer; some employers may not tolerate as many as this. Such instances include repeated lateness, or sickness which is not legitimate.

    Sickness is one of the main reasons for time taken off work. Statutory sick pay for valid illness covers employees who are absent through sickness on a prolonged basis and entitles an employee to a minimum of £96.35 per week for up to 28 weeks, or more if there is provision for sickness in their employment contract.

    How to manage a leave of absence

    By managing absence effectively, an employer can balance the needs of the business and the wellbeing of its employees. By understanding absence in all its forms, an employer can implement a range of methods to deal with situations fairly and consistently across all employees within the workplace.

    Various methods of absence management include:

    • Keeping track of absences – patterns may emerge in an employee’s absence record which employers should keep track of.
    • Incentivising non-absence – employers may wish to consider rewards for work attendance and not taking days off sick illegitimately, for instance, compensation for those who take no sick days off in a year. This does risk employees not calling in sick when they are genuinely ill, so such incentives need safeguards in place.
    • Flexible working – offering flexible working arrangements may prevent absences through, for example, employees running late to work and calling in sick as a result.
    • Employers can offer ‘duvet days’ which are essentially mental health days or softer versions of sick days where an employee wants to request a sick day but is not technically ill.
    • Return-to-work interviews ­– employers should give employees returning to work after an absence an interview to talk about any concerns they have and to ensure there are no further problems.
    • Create a workplace policy on leave of absence – having a clear absence workplace policy in place ensures consistent rules across an organisation and means all employees should be treated fairly.

    Failure by an employer to apply policies fairly to all employees will give an employee grounds to bring a claim for unfair dismissal. A policy should adhere to all legal obligations but should also set out how the employer will manage situations such as sick leave. Each possible situation and type of leave should be categorised, even down to the effects of severe weather or other acts of force majeure.

    A clause on absence may also be included in an employee’s employment contract, such as the rate of sick pay and how long it will be paid for. Knowing what the rules are, whether in a work policy or in their employment contract, will encourage employees to follow them – and if they do not, they are aware of the consequences.

    Each leave of absence should be assessed and all documents and correspondence with the employee should be kept as a record to ensure transparency in any situation.

    Training should be given to managers to provide them with the skills needed to deal with a leave of absence situation in a sensitive and compassionate way.

    Measuring lost time is an effective method of assessing the extent of time lost to a business and the negative impact that it is having. There are different ways of measuring this; the frequency rate is the average number of absences per employee; the lost time rate mechanism is the percentage of possible working time which is lost to absence by the employee; lastly there is the Bradford Factor which is a way of identifying an employee’s frequent short-term absence.

    Disciplinary procedures and pay restrictions are effective methods for short-term absence.

    For long-term absence, an official back-to-work policy will encourage employees to return to work more quickly. This might include review meetings with employees who are on long-term sick leave, seeking advice from doctors and occupational health professionals and planning any necessary workplace adjustments. A fit note should be sought from a GP confirming that an employee is well enough to return to work.

    Legal concerns when managing absence

    Any absence management policy should comply with the relevant legislation, which includes the Equality Act 2010, the Access to Medical Records Act 1998, the Data Protection Act 1998, the Employment Rights Act 1996, and the Working Time Regulations.

    Under the Equality Act 2010, qualifying disabilities include both physical and mental disability; physical disability includes illness and injury, and mental disability includes stress, anxiety, and depression.

    The legislation requires an employer to make all reasonable adjustments in the workplace to support the employee’s return to work. This could include reduced hours, different duties, or putting in place certain equipment in the workplace. If such adjustments are not considered by an employer, the employee may be able to establish grounds to bring a claim of unfair dismissal or disability discrimination if subsequently dismissed because of the disability.

    However, a long-term illness or disability may still allow an employer to terminate the employee’s employment if all reasonable adjustments have been made and the employee is still unable to perform their contractual duties.

    This legislation also covers employees wishing to take time off for compassionate leave. The Employment Rights Act 1996 is referred to in cases of unpaid leave, although there is no minimum or maximum entitlement to unpaid leave, and often further provision is stipulated in an employee’s contract as to whether they can take unpaid leave at all. If there is scope within an employee’s contract, an employer can force an employee to take unpaid leave where a work situation dictates; there is no limit to how long an employee can be laid off.

    Absence management best practice for employers

    Having a clear and concise workplace absence policy, which adheres to relevant legislation and is applied indiscriminately, and having effective methods in place for managing absence will help create a more harmonious and productive workforce who know the rules and will be encouraged to abide by them as well as help foster a healthy and positive employer-employee relationship.

    Leave of absence FAQs

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    Legal disclaimer

    The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.

    Author

    Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.

    Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing & Content Agency for the Professional Services Sector.

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