Legal Article - Employment Law

Employment Rights: Time Off Work

The law gives employees specific rights to time-off for the following purposes:

• Annual leave
• Take part in public duties such as, jury service
• Antenatal care
• For dependants
• Before redundancy
• Pension scheme trustees
• Reserve forces
• Trade union lay officials (e.g. shop stewards)
• Trade union members
• Employee representatives
• Safety representatives.

There are no specific statutory legal rights to time-off, for the following reasons:

• Sickness and accidents (except under SSP rules)
• Dentist/Doctor visits
• Compassionate leave for non-dependants
• Marriage
• Day release for studies etc
• Territorial forces activities, excluding active service

Time-off for these reasons are either at the employer’s discretion or more normally given as a contractual right under the contract of employment. Even for public holidays there is no specific statutory legal right, except for employees working in banks.


Employee Annual Leave Entitlement

Employee Annual Leave Entitlement

All employees are entitled to 5.6 weeks paid annual leave. A week is defined as the equivalent time worked in a week e.g. if it is normally 5 days then this amounts to 20 days paid annual leave.

The right to holiday pay accrues from the first day of employment. Public holidays can be included in the entitlement.

 

Public Duties Policy

Public Duties Policy

Employees who hold the public positions listed below have a right to a reasonable amount of time-off to perform the duties associated with them, in particular:

• Attendance at a meeting of the body or any of its committees or subcommittees

• Performance of duties approved by the body, which need to be done in discharging its functions or those of any of its committees or sub-committees.
The public bodies to which these rights apply are:

• A justice of the peace

• A member of a local authority

• A member of the Broads Authority

• A member of a police authority

• A member of a statutory tribunal

• A member of a board of visitors appointed under the Prisons Act 1952, or in Scotland a visiting committee appointed under the Prisons (Scotland) Act 1989
• A member of a National Health Service Trust, Regional, Area or District Health Authority, Family Practitioner Committee, or in Scotland a Health Board
 
• A member of a managing or governing body of school or college maintained by a local education authority or in Scotland a school council or the governing body of a designated institution
• A member of the governing body of a grant maintained school

• A member of the governing body of a further education or higher corporation

• A member of the board of management of a college of further education

• A member of a school board or the board of management of a self-governing school

• A member of the National Rivers Authority, or in Scotland a river purification board.
The amount of time-off, the occasions on which, and any conditions subject to which time-off may be taken, are those that are reasonable in all the circumstances having regard to the following:

• How much time-off is required in general to perform the particular public duty, and how much time-off is required on the particular occasion in question

• How much time-off the employee has already been permitted for this purpose, or for trade union duties and/or activities

• The circumstances of the employer’s business and the effect of the employee’s absence upon it.

The amount of time-off allowed by tribunals has varied from a few days to over three months. Particular factors taken into account by tribunals in deciding the amount of time-off have been:

• The seniority of the employee’s position within the public body e.g. leader of the Council or opposition party

• Where employees voluntarily take on extra duties extra days off have been refused

• The greater the need of the business for the employee’s presence at work, the fewer the days off allowed

• The size of the business; the bigger, the more time-off

An employee will often be expected to use some of their holiday entitlement if the time-off is extensive.

This right is effective from the first day of employment and irrespective of the number of hours worked. There is no requirement to pay the employee’s normal wages during the time-off.

The right is to ask for time-off and then complain to a tribunal if refused. The employee who just takes leave without permission may be guilty of misconduct. If an employee persists in exceeding the time-off allowance the employer can treat this as an ordinary discipline offence and, following the normal disciplinary procedures, the employee may end up being fairly dismissed.

 

Paid Time Off for Antenatal Care

Paid Time Off for Antenatal Care

An employee who is pregnant and who, on the advice of a registered doctor, midwifes or health visitor, attends a clinic or other place of ante-natal care has the right not to be unreasonably refused time-off work to do so, and to be paid for the permitted time-off.

Ante-natal care includes not only medical examinations but also, for example, relaxation classes and parentship classes.

These rights are available to all pregnant women from the first day of employment and irrespective of the number of hours worked per week, or whether they are temporary or not. Except on the first occasion on which time-off is requested, the employer is entitled to be shown on request,

• A certificate from a registered medical practitioner, registered midwife or registered health visitor confirming that she is pregnant: and

• An appointment card or some other document showing that an appointment has been made

It is not reasonable for the employer to avoid this right by rearranging the employee’s working schedule or requesting her to make up for lost time. On the other hand, employees are only entitled to enough time-off to travel to and from and to attend the ante-natal appointment NOT to have the whole day off if unnecessary.

The employee is entitled to be paid for the whole period of permitted time-off work, including travelling time, and if delayed from returning to work for any legitimate reason the additional time-off as well. The employer does not have to pay if, upon request to see a certificate of pregnancy and an appointment card (on the second and subsequent appointments) the employee does not produce them.
However, the employee only has to produce them if the employer requests her to do so.

Time Off Work for Dependants

Time Off Work for Dependants

All employees have the right to take a reasonable period of time off work to deal with emergencies involving a dependant and not to be dismissed or victimised for doing so.

There is no right to be paid.

A dependant can be the spouse, partner, child or parent of the employee, or someone who lives with the employee as part of the family. A person who reasonably relies on the employee to provide assistance or make arrangements will also be considered a dependant in cases of illness, injury or where existing care arrangements break down.

The new right enables employees to deal with an unexpected or sudden problem and make any necessary longer term arrangements in circumstances where:


• A dependant falls ill or has been involved in an accident or assaulted, including where the victim is hurt or distressed rather than injured physically

• A dependant is having a baby
• Care arrangements for a dependant who is ill or injured need to be made
• A dependant has died; e.g. to make funeral arrangements or to attend a funeral

• There is an unexpected disruption or breakdown in the care arrangements of a dependant; e.g. when a child minder or nurse fails to turn up
• There is an incident involving the employee’s child during school hours; e.g. if the child has been involved in a fight or is being suspended from school.

There is no set limit to the amount of time off which can be taken. In most cases, the amount of leave will be one or two days at the most, but this will depend on individual circumstances, although an employee may be able to take a longer period of leave under other arrangements with the employer.

Employees must tell their employer, as soon as practicable, the reason for their absence and how long they expect to be away from work.
There is no limit on the number of times an employee can be absent from work under this right. However, the right is intended to cover genuine emergencies.

 

Time-off for Pension Scheme Trustees

Time-off for Pension Scheme Trustees

Employees who are trustees of occupational pension schemes can take time-off for the performance of their duties and for training relevant to the performance of those duties.

The amount of time-off, the purposes for which it may be taken, and the occasions and conditions subject to which it may be taken are those that are reasonable in all the circumstances. Particular regard must be had to:

• How much time-off is required for the performance of the duties and the undergoing of relevant training

• The circumstances of the employer’s business and the effect of the employee’s absence on the running of the business

• The amount of time-off required for other reasons.

Time-off before Redundancy

Time-off before Redundancy

An employee who is given notice of dismissal due to redundancy is entitled to reasonable time-off with pay during working hours to look for another job, or make arrangements for training for future employment. The time-off must be allowed before expiry of the notice period.
 
Employees are entitled to time-off in this way if on a specified date they have two years’ continuous employment with their employer. The specified date means either the date when the employee’s notice expires or the statutory minimum period of notice expires, whichever is the later.

An employer should allow the employee reasonable time-off, although the law does not say how much as this will depend on the circumstances e.g. number of job interviews. Some factors, which may be relevant, are:

• The effect of the employee’s absence on the business, although the business needs would have to be very important

• The length of the employee’s notice period

• Local difficulties in finding employment
 
• The provisions of any redundancy procedure agreement, which deal with the question of time-off.

However, the employer does not have to pay more than two-fifths of a week’s pay regardless of the length of time-off allowed i.e. some may be unpaid.
There is no ceiling on the amount of a week’s pay as there is in calculating a redundancy payment, although it must be reasonable.

Should the employer refuse time-off, unless evidence is produced because they believe the employee is not using it for the purposes allowed by the law, this may persuade a tribunal that the refusal was reasonable.

Jury Service

Jury Service

All men and women between the ages of 18 and 70 (other than those disqualified or exempted) who comply with certain prescribed conditions laid down by the Juries Act 1974 (as amended by the Criminal Justice Act 1988) are liable for jury service.

The exemptions relate to previous convictions and special occupations. The employer or employee can ask for deferment or postponement in exceptional circumstances e.g. playing a key role in the organisation.

It is in the employer’s discretion whether or not they pay the employee for the time-off. The employee can, however, claim for travelling, subsistence and financial loss allowances.
 
Employees whose earnings during jury service fall below the National Insurance lower earnings limit are entitled to National Insurance contributions credits equal to the lower earnings limit then in force for each week or part of a week of jury service. Payments from the Court in the form of financial loss allowance etc are not counted as earnings.

Relevant employees must claim these credits (in writing) from the local social security office before the end of the benefit year (January to January) immediately following the tax year in which the period fell.

Married women and widows entitled to pay reduced rate National Insurance contributions are not entitled to credits for jury service.

 

Reserve Forces (Safeguard of Employment) Act 1985

Reserve Forces (Safeguard of Employment) Act 1985

The Reserve Forces (Safeguard of Employment) Act 1985 says that members of the reserves and auxiliary forces who are called to active duty have a legal right to reinstatement in their previous employment.

Continuity of employment is preserved although the actual period of absence does not count for accrual purposes for holiday entitlement and other benefits. Nor is the employer obliged to pay salary during the absence.

The employer must not dismiss an employee before the date on which they are required to attend for whole time service, for a reason arising from the employee’s call out.

The applicant must make an application for reinstatement to the former employer in writing by the third Monday after the end of whole-time service, unless there is a good reason preventing them from doing so (e.g. ill-health).

Not later than the sixth Monday, the applicant must tell the employer in writing the date of availability for work, which must be within the following six weeks. Applications have to be renewed in writing every 13 weeks.

The former employer has an obligation to take the applicant into employment at the first opportunity once notified of their availability. The applicant should be taken into employment in the occupation in which they were employed prior to the “call-up” and on terms and conditions comparable to those, which would have applied, had there been no call-out, unless it is not reasonable and practicable.

A reinstated employee has the right to remain in employment for a specified minimum period, depending on their previous service as follows
 
• Less than 13 week’s service: at least 13 weeks employment
• More than 13 but less than 52 week’s service: at least 26 weeks employment

• More than 52 week’s service: at least 52 weeks employment.
An employer is not required to reinstate an applicant if it means dismissing another person who has longer service that the applicant. Otherwise the applicant must be reinstated and the other person dismissed.

The statutory right to reinstatement is only applicable where the whole-time service is a consequent of an Order from the Ministry of Defence authorising call-out. This Act does not cover service in the Territorial Army. Any time-off for the latter is entirely at the employer’s discretion.

Under the Reserve Forces Act 1996 a new High Readiness Reserve of 3000 specialists has been formed who can be called up for any reason at short notice. However, an employee may only join the Reserve with their employer’s consent. Where this is given then the following applies:

• Reservists may be called up for tasks other than national emergency, such as peacekeeping and disaster relief

• The government will top up reservist’s pay to their usual earnings

• The government will compensate employers for costs incurred in replacing reservists, such as the cost of temporary staff.

Principles of Good Employment Practice: Employee Leave

Principles of Good Employment Practice: Employee Leave

Employers and employees are free to agree whatever terms they wish in relation to time-off rights, subject only to the statutory requirements described above. It is best for the terms agreed to be in writing to avoid any disputes about entitlement.

Holiday rights must be written down in the Statement of Terms and Conditions of Employment. Any ambiguity in the written terms as regards time-off, or where there are no written terms and there is a dispute over custom and practice rights, can be resolved by the courts.

For example, there is no statutory right for an employee to receive accrued holiday pay in lieu of holiday entitlement not taken. If the employer does not wish to give accrued holiday pay, this must be put in writing in the contract of employment otherwise the courts will imply such a term.


Further, if accrued holiday pay is given this can be calculated on a calendar basis and not a working day, unless there is a written term (or long standing custom and practice) to the contrary i.e. a day’s pay calculated on the basis of 1/365th of annual salary and not 1/260th, which is the proportion of working days.

For statutory time-off rights both parties should try to agree in advance the pattern of time-off rights required by the particular duties in question in relation to the requirement of the business.

The minimum attendance requirements for each magistrate’s bench can normally be obtained from the Clerk to the Justices, or from the tribunal staff in the case of statutory tribunals. In the case of local authorities, meetings of the Council and its committees usually follow a fixed pattern.

Employers should ask for documentary confirmation that the time-off request is genuine, or was in fact taken for the purpose stated, whenever possible. For example, when time-off for sickness occurs the employer can ask for a medical certificate after seven days of absence, or if less than seven days can require the employee to complete a self-certification form.

Published: 27 May 2011

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