How much compassionate leave are staff entitled to?

HR professionals need to know the limits of reasonable time off for employees to grieve and look after dependants following the death of a loved one.

An employee is entitled to take reasonable time off work during working hours to take certain actions in relation to his or her dependants. Among other reasons, this time off can be taken so that the employee can take ‘action which is necessary in consequence of the death of a dependant’. ‘Dependant’ includes, but is not limited to, spouses, children and parents.

In Forster v Cartwright Black [2004] IRLR 781, the Employment Appeals Tribunal (EAT) considered the scope of qualifying actions for time off work taken in consequence of the death of a dependant.

During Mrs Forster’s employment at Cartwright Black, beginning in August 2003, she took five days’ sick leave.

In January 2003, Forster took 12 days’ paid bereavement leave following her father’s death. Sadly, Forster’s mother died in May 2003, upon which Forster took five days’ bereavement leave. When this leave expired, Forster’s doctor certified a further two weeks’ sick leave as ‘bereavement reaction’. Her doctor then issued a sicknote for the same reason for a further two weeks.

Following receipt of Forster’s second sicknote, she was dismissed because of her period of absence following her mother’s death and her general absence record.

Forster lacked sufficient continuous service required for a claim of ordinary unfair dismissal. Instead, she alleged that she had been unfairly dismissed because she was dismissed for an inadmissible reason, ie, because she took time off in consequence of a dependant’s death. This claim does not require a period of qualifying service to be able to make a claim.

The EAT held that Forster’s absence from work after her mother’s death did not fall within the definition of ‘an action which is necessary in consequence of the death of a dependant’ and, therefore, her claim failed. The EAT held that necessary actions covered by the legislation include (but are not limited to) making arrangements such as funeral organisation, funeral attendance, registering death and applying for probate.

The EAT acknowledged that a dependant’s death will lead to sadness, bereavement and unhappiness, but there is no legal right to compassionate leave as a result of bereavement.

Impact of the decision

There is no statutory right to time off for grief following a dependant’s death, and an employer can refuse to authorise time off for this reason. However, employers should also consider the impact such a decision would have on employee relations if they deny time off requested on this basis.

The right to reasonable time off during working hours is restricted to practicalities and administration following a dependant’s death. However, religions and beliefs have different customs in the event of death. For example, Hindus believe that cremation must take place as soon as possible following death so it may occur at short notice. Following cremation, close relatives observe a 13-day mourning period during which they remain at home.

Can the employer refuse time off if it does not consider that these actions are ‘necessary actions’ in consequence of a death?

Legislation prohibits discrimination in the workplace on the basis of religion or similar belief. Refusal by an employer to allow employees to take reasonable time off in which to comply with their religious beliefs following a dependant’s death, regardless of the religion, may be discriminatory.

Employers should take a serious and sympathetic view of requests for time off following the death of a dependant and may consider introducing reasonable time off (or a prescribed number of days) following a bereavement as a discretionary benefit to be authorised by managers, provided that this discretion is not exercised discriminatorily.

Adopting a compassionate leave policy, regardless of whether the request relates to solely practical matters, could assist in ensuring the sensible exercise of this discretion, but it should avoid the implication of a contractual right to compassionate leave, unless this is intended.

The employer’s business needs should be considered to determine whether there are sufficient staff to run the business in the event that employees take compassionate leave.

By Jennifer Armstrong, associate, Bristows Solicitors

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