In the latest instalment of the Breaking Down the Handbook series, we discuss time off work policies, looking at how to manage difficult circumstances and make expectations clear to your employees.
What is a time off work policy?
A time off work policy is a catch all term which sets out how employers deal with situations in which employees may need or wish to take time off work, including sabbaticals, bad weather, family emergencies, and any other situation which does not fit into the more common categories of time off, such as holiday and sickness. Although invoked relatively rarely, having these policies in place can save employers disruption when the situations do occur.
Bad weather and travel disruption
It is an unfortunate fact of life that there will occasionally be circumstances in which it becomes either difficult or impossible for people to travel sometimes due to weather or possibly industrial action, and this will inevitably affect employees who need to get to work. The key for employers is to have a strategy in place for when these circumstances occur – employers should consider the best way to balance business continuity and the interests of its employees.
From a purely legal perspective, in bad weather, employees have the right not to be subjected to a detriment for refusing to work in situations in which they have a reasonable belief that there is “serious and imminent” danger. What is “reasonable” will be a matter of fact, but employers must be aware of the potential for a tribunal claim if the health and safety of their employees is disregarded.
Preferably, there should a clearly worded section in the staff handbook which sets out the protocol in the event of bad weather or other disruptions (including whether staff are to be paid if they cannot get to work). Ensuring that employees are aware of the process will reduce the likelihood of a dispute later. It is also sensible to remind employees of the policy and expectations (perhaps by way of an office-wide email) if bad weather is forecast.
To pay or not to pay?
If the employee’s contract says that they have the right to be paid in the event of them being prevented from attending work, they must be paid, otherwise they will have a claim for breach of contract. There is differing case law on the point of whether ‘being willing and able’ to work constitutes consideration (which is a vital part of a legally binding contract), which would give employees the right to be paid in these situations, even if there is no explicit contractual right.
However, debating whether employees have provided consideration is not particularly helpful in what is more of a ‘common sense’ problem. Clearly, being over zealous, in not paying employees when they are not able to come into work will breed resentment, and give the employer a bad reputation detrimentally affecting employee engagement in the future. On the other hand, guaranteeing to pay all employees, regardless of whether they make it to work or not, creates no incentive for employees to try to get to work in bad weather or industrial action.
Acas suggests this is opportunity to demonstrate to employees their value to the business. The policy should make clear that the employer will trust its employees to make reasonable efforts to attend work but not to come in if it is completely unsafe or impractical to do so. At the same time, it is an opportunity to raise morale for those employees who do make it for example allowing employees to go home early, or providing small tokens of appreciation. Even small gestures can have a surprisingly large effect on employee morale and productivity.
On the theme of morale, employees can occasionally wish to take an extended period of time off, and employers often allow (and, to a certain extent, encourage) their employees to take time off, so how should employers approach the practicalities?
A sabbatical policy should invite employees to informally discuss their plans with their line manager first. It is crucial that the employee has given thought to how their work would be covered if they are not part of the business for several months. Next, an application should be submitted in writing in an appropriate amount of time before the proposed sabbatical will take place, to allow the employer long enough to consider and respond.
In terms of the wording of the rest of the policy itself, the key things for employers to consider are the conditions attached to the approval of the sabbatical, how the sabbatical will work while the employee is off and when they return to work. For example, is the employee required to be available for training (or anything else) during the sabbatical? How long is the sabbatical for? Is the employee’s former role to be ‘kept open’ during the sabbatical, or is there simply a promise to prioritise the employee for similar roles?
One thing to bear in mind is that unless it is specifically agreed with the employee in writing, taking a sabbatical will not terminate the employment contract, and the employee’s length of service (for the purposes of unfair dismissal and statutory redundancy claims) will not be affected. Indeed, for most employees, being made to resign in order to take a career break would defeat the entire point of taking a sabbatical.
Jury service and other unexpected events
For some, being called up for jury service represents a public service and for others, it’s a hassle. Another situation that occurs a little more regularly is where an employee is forced to take care of a dependent. Having an action plan for when such events occur is essential.
Again, clarity of communication is the most important thing, and the key issue is likely to be pay. Employers are not obliged to pay employees to take time off for jury service (the courts have their own procedure for reclaiming expenses and lost earnings), or to take care of dependants. It is a purely business decision as to whether employers categorise the leave as paid or unpaid, but the crucial aspect is that it is communicated to the employees through the policy.
For taking care of dependents, in addition to the big question of to pay or not to pay, employers should be careful with policy definitions (for example, how does the employer define “a dependent”? What kind of situations are covered by the policy?) and logistics (e.g. who should be notified, and how should they be notified?). By covering off all the possibilities, employers can avoid awkward conversations (or worse) later on.
Problem or opportunity?
How difficult circumstances are dealt with by the employer is memorable for employees handled well they can be a chance to genuinely build and improve employee morale and productivity.
Next month we will be discussing drug and alcohol policies.