No employer relishes the idea of making people redundant, and naturally you will want to do all you can to help those affected find their feet as soon as possible. At the same time, with the pressures facing businesses right now, are you obliged to give employees paid time off to search for their next role?
The legal answer
The law does allow employees to take reasonable time off during working hours to look for a new job or make arrangements for training for future opportunities. This right applies to employees who have been given notice of redundancy and who have worked for you for at least two continuous years by the date their notice expires.
Unfortunately for employers, the law doesn’t specify what constitutes ‘reasonable’ time off. What is reasonable to some may not be reasonable to others; some employees may want to focus heavily on their next move and expect the freedom to explore every possible avenue of alternative employment, while others may be happy to scour job boards in their own time and only ask for time off to attend interviews. Of course, you may have your own ideas about what is reasonable in these situations.
In reality, what is reasonable will differ depending on the individual circumstances of each case. Should it go as far as an employment tribunal, it will come down to a careful consideration of the employers’ needs and the interest of the employee to find work. A tribunal will take into account:
- the impact the absence would have on the business;
- the length of the employee’s notice period;
- how much notice they have given you of their intention to take time off; and
- local difficulties in finding alternative employment.
It is therefore a good idea to weigh up these factors before denying an employee’s request for time off.
It might be that you have no problem with employees taking time off to job hunt, provided they give you fair warning so you can arrange cover and work around their absence. You may wish to set out your stall ahead of time, explaining to those affected that you will endeavour to be as flexible as possible with their requests for time off provided that they give you reasonable notice, as this could prevent difficult conversations and disruption down the line.
Remember, your usual holiday request rules don't apply during an employee’s notice period – this sort of time off is governed entirely by the concept of reasonableness.
Can you refuse?
Employers cannot unreasonably refuse an employee time off for job hunting, or refuse to pay them for time off, and doing so may leave you exposed to an employment tribunal. Again, it is therefore pertinent to weigh up the impact on both parties for ‘reasonableness’, taking into account the points outlined above.
That said, employees cannot abuse this legal right and use job hunting as a way to avoid working their notice period. The right to time off exists to enable employees to look for work or make arrangements for training for future opportunities; if you have a well-founded suspicion that the employee is fabricating interviews and not using the time off for this intended purpose, it may be reasonable to refuse.
If an employee is employed to work a five-day week, then they would be entitled to full pay for any amount of time off up to two days (40 per cent). For any further time off after that there is no entitlement to pay, and the employee will need to take unpaid leave or annual leave to cover these additional days. Of course, you may wish to be more generous, and there may already be a contractual agreement in place that specifies more generous payments, so be sure to check first.
James Tamm is director of legal services at Ellis Whittam