Supporting employees through a divorce: what can employers do?

With divorce rates on the rise, employers may want to consider how best they can support staff going through the divorce process or a relationship breakdown.

The Positive Parenting Alliance (‘PPA’) HR Initiative launched in January 2023 concluded that employers need to do more to support employees, and major companies like Asda, Tesco, Metro Bank, NatWest, Vodfafone and Unilever are already changing their HR polices to reflect the findings. However, it is not only major companies who are wise to this; SMEs must also change their approach if they are to retain valuable staff.

The PPA commissioned a report of more than 200 employees and found that:

• 90% employees said their separation or divorce had negatively affected their working lives and their ability to do their job.
• 50% of them feared that they may lose their jobs because of the effect their divorce was having upon them.
• 95% felt that their anxiety and mental health were impacted.
• 75% admitted that they were less efficient at work.
• 40% needed time off from work.

These findings highlight the need for conscientious socially aware companies to review their HR policies.

Steps employers can take to support divorcing employees and to protect their business

1. Recognise separation and divorce as a “life event”, similar to bereavement, in your HR policy so that your employees understand what you are offering. Just the knowledge that you are forward-thinking enough to have a policy on divorce will instantly promote good feeling amongst all employees.

Whilst marital breakdown is not specifically protected under employment law, our experience shows that connected issues, such as mental health concerns, may give rise to a disability and, as such, the employee will be protected under the Equality Act 2010. This means the employee must not be treated less favourably than a non-disabled person and means the employer must ensure reasonable adjustments are made in the workplace to create a level playing field for disabled employees.

2. Offer flexible working arrangements to employees who are going through separation and divorce to allow them to adjust to new childcare arrangements, to attend meetings with their solicitor or to take time for themselves.

Flexible working requests are soon to be a day-one right, removing the need for 26 weeks’ service. Currently, the employer can refuse the request on the basis of eight business grounds. However, an unreasonable refusal to accept a request due to childcare arrangements and responsibilities made by a mother can result in a potential (indirect) sex discrimination claim.

Where childcare arrangements are in flux or have changed permanently, flexible working arrangements can often help the employee to continue performing their duties efficiently while resolving their personal matters.

Although employees can only make a flexible working request every 12 months (note this is likely to change this year if the Employment Relations (Flexible Working) Bill is enacted, allowing two requests to be made per annum), businesses may find a mutual benefit in allowing more frequent requests while new arrangements are being put in place. The parties could seek to agree a temporary change to the employment contract as needed.

3. Is an unpaid sabbatical appropriate to allow your employee space to process the major life event and to remove a potential distraction from your work force?

Full-time employees are entitled to take unpaid parental leave to take care of their children.   Such leave can be delayed by the employer but not refused. The statutory entitlement is 18 weeks’ leave up until the child reaches 18 years and is capped at four weeks per year (pro-rated according to the employee’s working week). Employees are protected against less favourable treatment and dismissal because they have taken such leave.

In addition, or alternatively, employers may consider agreeing to an unpaid (or even partially or fully paid) longer or short sabbatical if, for example, the employee needs a complete break, or needs to deal with a final hearing in the divorce, respectively. An agreed, unpaid sabbatical may be less disruptive for an employer than a distracted employee using up their holiday to attend a hearing. It is also more supportive and shows the employee that they are valued.

4. In order to reach a financial settlement within a divorce, transparent financial disclosure needs to be provided by both parties and your employee may ask you to provide documents relating to their employment. Be as helpful as you can and provide what is requested as promptly as possible. It generates more good feeling with your employee and removes a stressful task from them.

Be aware that documents sent to an employee regarding performance or remuneration may need to be shared with the spouse or disclosed in proceedings (even without prejudice correspondence). Such documents should therefore be prepared on this basis. Any confidential information (for example, relating to clients) could be included in a confidential schedule, anonymised or pseudonymised, and should be able to be redacted if necessary.

5. Give employees access to counselling and legal services and consider paying for this if this isn’t already an employee benefit, whether it is a one-off meeting or a longer retainer with a family solicitor.

If you have questions about how to manage an employee going through a divorce, please contact Claire O’Flinn and Emma Clark.

Keystone Law’s family partner Claire O’Flinn is offering companies the opportunity to support employees going through a divorce or relationship breakdown with a bespoke service. If you are interested in finding out how an in-house family law service will benefit your business, click here.