HR · 11 October 2018

When can an employee take unpaid leave?

unpaid leave
It is important that rules around unpaid leave are made clear to employees to avoid any confusion on entitlement

Writing for Business Advice, Kate Palmer, associate director at Peninsula HR, helps employers understand when an employee can take unpaid leave and explains what the law says on such matters.

Many employers will be aware of a worker’s annual entitlement to paid annual leave, however, fewer will be aware of an individual’s ability to take a periods of unpaid leave. There are in fact a variety of instances where individuals can take unpaid leave, some of which are transcribed in law, whilst others are down to the employer’s discretion.

Perhaps the best known and most utilised form of unpaid leave is time off for dependants. This is transcribed in the Employment Rights Act 1996 and entitles eligible employees to a “reasonable” amount of time off to care for a dependant, which will typically be a child, relative or other individual who an employee provides care to.

What is considered “reasonable” is not defined in legislation, however, in reality, this is usually no more than two working days per instance and is designed to simply allow the employee the freedom to deal with an emergency situation involving a dependant.

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Another form of unpaid leave protected by legislation is the right to parental leave, which is designed to give employees 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 entitled to 18 weeks of unpaid parental leave, limited to a maximum of four weeks per year under the default scheme, for each child they have under the age limit.

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

Although it is not a statutory requirement, employers can choose to offer staff the opportunity to take a period of compassionate leave, should they suffer a bereavement or experience some other particularly distressing episode in their personal life. Whilst some employers do in fact pay staff during this time, others refrain from this practice given that there is no legal requirement for them to do so, during this extended period of leave.

Career breaks and sabbaticals are other forms of unpaid leave which can be made available to staff. This usually comprises a single period of extended leave but may, in certain circumstances, comprise short, frequent periods of absence or regular time off.

Such periods are typically used for study, travel, or voluntary work and are often recognised as a good way to retain skilled staff who may have other interests outside of work, allowing them to pursue these without needing to leave the organisation entirely. As there is no legal obligation to offer this leave, employers are free to create their own conditions around things such as the length of the leave and any eligibility requirements.

Employers may, of course, set other rules for unpaid leave in their organisation but it is important that the rules are made clear to employees to avoid any confusion on entitlement.

As work-life balance continues to grow in importance for employees, employers would be wise to consider how their own approach to this can be beneficial to the success of the organisation in the long term.

Kate Palmer is associate director at Peninsula HR

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Kate Palmer CIPD is the head of advisory at law firm Peninsula and is a member of its senior leadership team. She joined in 2009 having held a senior HR manager's role in another large company. With a specialist background in facilities management in the NHS, Kate offers a wealth of employment law experience. She's an expert negotiator - one notable case was with the NHS's trade unions over terms and conditions in the Agenda for Change pay system.