The great American statesman Benjamin Franklin said that nothing is certain in this world apart from death and taxes. In the world of employment law, the employer always takes care of the employee in relation to the latter, but there are inevitably difficulties for staff who have to cope with the former.
Although there is a moral right to compassionate leave, there is no provision for it in legislation. In any event, employers do not necessarily give much flexibility in the way in which their compassion is exercised.
Everyone encounters bereavement. Some cope with it well, while others suffer prolonged reactions that affect their health, and consequently, their ability to carry out their work duties. Others express their grief through anger or withdrawal behaviour – both of which can undermine the structure of the workplace hierarchy and put the affected employee’s employment future at risk.
The common feature of all bereaved employees is that, eventually, they will have to return to work, regardless of whether or not they are ready to do so.
To assist the needs of those in such circumstances, bereavement counselling is now widely available outside the workplace. Within it, the OH team is likely to be involved in similar processes for those who return to work after the death of a loved one to enable them to cope with the stresses of coming to terms with their loss while maintaining work standards.
In-house counselling given by OH personnel to enable the bereaved to resume relationships with work colleagues is an important facet in their recovery. Performance issues may have to be covered where returners are not psychologically fit to resume working in the same way as they did before the death of a loved one.
The aim of therapy is to maintain the health and well-being of the bereaved, as all too often, compassionate leave is extended by sickness absence on occasions when psychological illness develops.
Section 57A of the Employment Rights Act 1996 sets out the legal provisions for time off for dependants, including time off required in consequence of the death of a dependant.
Many people in the world of OH are familiar with the right to take a reasonable amount of time off during the working hours to take action that is necessary under defined circumstances.
The right to take leave to deal with emergencies affecting dependants is qualified by the employee’s requirement to tell the employer the reason for their absence as soon as is reasonably practicable, and to state how long they expect to be away.
After the sudden death of a close relative, informing the employer of imminent absence may not be uppermost in the mind of a bereaved person. However, the law provides for reporting the reason for absence upon returning to work if the absence had not been previously requested or explained.
Such circumstances would probably be exceptional, as there is usually another party who could or should report the tragedy even if the employee is too badly affected to make personal contact with the employer.
Where death is concerned, the custom is to describe a period of authorised absence, whether paid or unpaid, as compassionate leave. If the contract of employment is silent about compassionate leave, there is no entitlement to it.
What the law does not do is provide a general right to compassionate leave in the event of a death, although an individual company may have contractual provisions or policies.
The statutory right to time off for dependants is limited by the provisions of the Employment Rights Act, set out where the situation affects a spouse, child, parent, or a person who lives in the same household as the employee, otherwise than by reason of being his employee, tenant, lodger or boarder.
Stressful effects of bereavement
Regardless of the length of time off to come to terms with the death of a loved one, it is clear that there are likely to be stress factors that could undermine the health of the returning employee.
Since stress is recognised as a causative factor in psychological illness, it would be useful to consider the use of a questionnaire in carrying out a risk assessment on someone who has suffered a recent bereavement.
In the 1950s, US psychologists Thomas Holmes and Richard Rahe devised a scoring system to evaluate stress, which remains useful in assessing whether illness is likely to occur as a result.
The example set out on page 14 shows some of the relevant scoring factors. The number of ‘Life Crisis Units’ relates to the probability of illness. The individual can assess whether any of the criteria in the list apply, and use their own score for each event that has occurred in the previous two years.
A total event score of 300 indicates an 80% chance of illness developing, with the risk decreasing for lower scores. So a score of 150 to 200 indicates a 33% chance of illness. However, necessary counselling and adjustments to workload or work style can prevent illness.
In the recent case of Hartman v South Essex Mental Health and Community Care NHS Trust  IRLR 293, the Court of Appeal confirmed that an employer will be liable for psychiatric injury suffered by employees owing to the pressures or stresses of work if their injuries had been reasonably foreseeable under all the circumstances of the case.
Whereas each case must be determined on its own facts, the employer is basically required to take positive steps to ensure the safety of the employee in light of what they know or ought to know about them. A bereaved employee should be counselled to avoid them bringing external stress into the workplace.
Linda Goldman BDS, LLB and Joan Lewis MCIPD, MA (Law & Employment Relations). Any enquiry about this article may be made to Joan Lewis at [email protected] Telephone 020 8943 0393
TIME OFF FOR DEPENDANTS
Staff can take time off:
- to provide assistance on an occasion when a dependant falls ill, gives birth, or is injured or assaulted
- to make arrangements for the provision of care for a dependant who is ill or injured
- in consequence of the death of a dependant
- because of the unexpected disruption or termination of arrangements for the care of a dependant
- to deal with an incident that involves a child of the employee and which occurs unexpectedly in a period during which an educational establishment which the child attends is responsible for him/her.
Forster v Cartwright Black  IRLR 781, EAT
Within five months of the commencement of her employment, Forster had taken 12 days’ bereavement leave following the death of her father. Five months later, her mother died. She then took five days’ bereavement leave, and suffered an illness described as a ‘bereavement reaction’, for which she took two consecutive periods of two weeks’ certified sick leave.
Prior to the first bereavement and before the second, she had five other days of sick. At the end of the month of bereavement reaction illness, she was dismissed due to her absence record. She claimed unfair dismissal in the employment tribunal on the grounds that she was dismissed for taking time off in consequence of the death of a dependant under s.57A of the Employment Rights Act 1996.
Her case failed because the employment tribunal held that following a doctor’s advice not to work did not amount to “action which is necessary … in consequence of the death of a dependant”.
The Employment Appeal Tribunal agreed with that finding. Her dismissal because of her absence record was not for an inadmissible reason.
The law is clear that taking time off is a “necessary action” in consequence of a death. This does not have to be applied solely to making funeral arrangements, but also includes other actions that have to be taken when a dependant dies.
However, the court confirmed that the provisions of the Act are not intended to create a right to compassionate leave as a result of a bereavement, but are only intended to enable people to deal with the practicalities of death.
Qua v John Ford Morrison Solicitors  IRLR 184, EAT
This case is an earlier indication of how the courts will now deal with the right to time off for dependants, as set out in section 57A of the Employment Rights Act 1996. The Act provides that it is automatically unfair to dismiss someone for exercising that statutory right.
In this case, Qua took 17 days’ leave to deal with her son’s medical problems during a nine-month period of employment. Her case failed at the employment tribunal, because it was found that she had failed to comply with her obligation under section 57A(2) to tell her employer “as soon as reasonably practicable … how long she expected to be absent”.
The Employment Appeal Tribunal sent the case back to the employment tribunal for it to reconsider its findings.
The grounds for doing so were that the right provided by legislation is to take a reasonable amount of time off work to deal with unexpected events affecting dependants, and to be able to deal with an immediate crisis. Time could also be taken to make longer-term care arrangements for dependants if so required.
However, the law does not create a right for employees to take time off to take general care of a child who is ill. A chronic or underlying medical condition, such as asthma, for example, involving regular relapses, does not fall within the scope of section 57A at all.
Further, a “reasonable” amount of time off should be evaluated by a tribunal without reference to any ill-effect on the employer’s business. According to the judge: “The operational needs of the employer cannot be relevant to a consideration of the amount of time an employee reasonably needs to deal with emergency circumstances of the kind specified …”
Thus, although the employer has needs in relation to the running of the business, they are not relevant to the wording of the legislation. The legislation imposes a duty on employers to permit employees to take time off work in the circumstances described without fear of reprisals, so long as they comply with the legal requirement to notify the employer about the reason for absence and, unless they cannot do so before they return to work, how long they expect to be absent.