Should employers be creating or updating a special leave policy?

Employment law expert Michelle Last look at best practice when drawing up a policy to manage leave requests if there is no statutory right to time off – for example if the employee is undergoing gender reassignment or elective surgery.

Employment law is heavily impacted by the current social and political climate. For example, a more flexible, open attitude to employees has heralded a transition towards requests for alternative types of leave or ‘special leave’. Employers are no longer simply facing requests for time out to care for children, to study or to take a sabbatical. Instead, this brave new world sees requests for time off for breast augmentation, for gender reassignment procedures and to grieve following the death of Tibbles, a much-loved cat. Many employers are now introducing special leave policies to deal with the plethora of unusual requests for leave. In this article, I explore the statutory obligations on employers when dealing with requests for special leave and potential ways to manage such requests through a dedicated policy.

Basic statutory rights

Employees have various rights to statutory leave, including the right to holiday, different types of family leave and time off to perform duties as a trade union or employee representative (see the table below). There is no right in law to take time off for jury service but dismissal for taking such time off would be unfair. Nor is there a right as such to take time off for sickness but, of course, it is a reality that employees will on occasion be unwell and unable to work. Similarly, in practice, employers tend to grant time off for medical appointments although this is not a legal requirement.

Statutory leave entitlements

Non-statutory or contractual leave

Unless an employee has a statutory right to take leave, or has been granted a contractual right to leave, an employee will generally require consent to take time off for other reasons. It is prudent for employers to consider other requests carefully and not to dismiss a request outright. Many employers are now developing ‘special leave’ policies to deal with requests for such absences.

Developing a special leave policy

Having a published special leave policy will assist both employers and employees. From employees’ perspective, it will ensure they are informed that there is no statutory or contractual right to take special leave, but it will highlight circumstances when they might still wish to take time off and how the employer will deal with such a request. From the employer’s perspective, it will clarify who deals with such requests and how. It may also help to minimise the risk of claims by ensuring requests are dealt with fairly, consistently and proportionately, without being rejected out of hand.

When drafting a special leave policy, employers should:

• consider summarising the statutory forms of leave and whether there are any other leave policies which the employee should first consider (for example, point the employee to a maternity leave policy if she is seeking to take maternity leave);
• be clear about who the policy applies to – whether just employees or also contractors and workers;
• encourage employees to give as much notice as possible and warn them that, if they give inadequate notice, it may be more difficult for the employer to grant leave;
• set out how to make the application
  -ideally, this would be on a designated form, setting out the requested dates for the leave and the reason for the request;
• set out who will deal with any such request, for example the employee’s line manager or someone from human resources;
• consider setting out a timetable for responding to the request, similar to a flexible working request;
• confirm that the policy does not undermine the employee’s existing statutory or contractual rights;
• stipulate that a period of special leave is unpaid, if this is the case – it is not advisable to state that pay may be made at the employer’s discretion, as this may still create an expectation of payment if the employee feels their request is particularly meritorious, while highlighting the scope for difference in treatment;
• confirm that unauthorised absences may warrant disciplinary action up to and including dismissal under the disciplinary policy;
• be clear that the policy is not contractual and can be amended by the company from time to time at its absolute discretion; and
• outline some of the types of time off that may constitute special leave.Examples might include:
  • the death of a relative (though note the impending April 2020 change relating to the death of a child);
  • the serious ill health of a relative (though note the right to time off to deal with emergencies relating to dependants);
  • a domestic emergency such as a house fire or boiler breakdown;
  • public duties (even if they are not covered by the ERA);
  • volunteering;
  • mentoring;
  • service in the reserve forces;
  • infertility treatment;
  • gender reassignment;
  • elective surgery, including plastic surgery;
  • the death of a family pet;
  • time off for hobbies; and
  • religious ceremonies.

Issues with specific requests

Some of these situations warrant further comment.

Infertility treatment

According to Fertility Network UK, one in six couples experience infertility. It is therefore a common issue faced by employees.

Employees undergoing infertility treatment may feel particularly stressed and overwhelmed. Such feelings can be exacerbated by concerns about the ability to take time off work. In some cases, employees will not want to talk to their manager about the fact they are undergoing infertility treatment and may instead apply to take annual leave. Others may feel happier about confiding in their employer and look to take additional (usually unpaid) time off as special leave. Both female and male employees may be affected by infertility treatment and the need to take time off work.

There is no statutory right to take time off for such treatment. The right to take time off for ante-natal appointments, for example, does not apply unless an employee is actually pregnant. Employers can therefore deal with applications for time off in the same way as requests for other medical appointments. It may be advisable to link to a sickness absence policy confirming that medical appointments should be taken outside office hours where practicable. An employee undergoing infertility treatment may require multiple appointments, but these can be treated in the same way as an employee undertaking multiple medical appointments. An employee who is off sick as a result of infertility treatment should be treated in the same way as an employee on other sickness absence.

A woman undergoing infertility treatment is only protected against pregnancy discrimination once she is pregnant. The European Court of Justice determined in Mayr v Bäckerei und Konditorei Gerhard Flöckner OHG [2008] that a woman undergoing infertility treatment is deemed to be pregnant when in vitro fertilised eggs are transferred into her uterus. Furthermore, if a female employee is on sick leave as a result of infertility treatment, in undergoing follicular puncture followed by immediate implantation of fertilised eggs, this leave arises because she is a woman. In such circumstances, if an employer dismisses her, this could be sex discrimination. The Employment Appeal Tribunal has endorsed this approach in Sahota v The Home Office [2009].

In practice, an employee is not obliged to inform the employer of the nature of her infertility treatment. The employer may therefore not know when she is deemed ‘pregnant’ and so should exercise caution to avoid pregnancy discrimination.

Gender reassignment

There are no official statistics but the Government Equalities Office has estimated that there are approximately 200,000 to 500,000 trans people living in the UK. The trans population is on the increase. It has been reported that at the Charing Cross Gender Identity Clinic in London, the oldest and largest adult clinic, the number of referrals for gender reassignment surgery almost quadrupled in ten years, from 498 in 2006-07 to 1,892 in 2015-16. It is therefore likely that more and more employers will be faced with trans employees seeking time off for treatment or counselling.

The starting point is that an employee undergoing gender reassignment is not entitled to statutory time off for medical treatment or counselling because of their gender reassignment. However, they should be treated in the same way as other employees on sick leave.

If an employer treats an employee less favourably in relation to absence for gender reassignment than it would have treated another employee on sickness absence, this may constitute direct discrimination contrary to s16(2) of the Equality Act 2010. The Equality Act 2010 Code of Practice states that:

It would be good practice for employers to discuss with transsexual staff how much time they will need to take off in relation to the gender reassignment process and accommodate those needs in accordance with their normal practice and procedures.

It may be prudent, therefore, to seek to agree a period of unpaid time off to undergo gender reassignment or counselling, if requested.

Elective surgery

TV shows and celebrities have fuelled a demand for elective cosmetic surgeries. An employee is not entitled by law to take time off for cosmetic surgery, but employers should be aware of potential underlying mental health issues if, for example, an employee is depressed because of their body image. Employers are therefore advised to treat such requests fairly and sensitively.

A matter of discretion

In conclusion, there are core statutory rights to take time off in certain cases. In other cases, employers have a wide degree of discretion on how best to manage requests for time off. Given the increasing range of requests which employers may face, it may be prudent to implement a special leave policy, to ensure such requests are treated openly, consistently and fairly.

Should you require advice on your special leave policy, please feel free to contact Michelle Last using the contact details below.

This article was first published in Employment Law Journal (June 2019).