Legal

Is it time to introduce a ‘special leave’ policy?

11 Dec 2019 By Sarah Begley

Offering staff time off for situations from family deaths to gender reassignment surgery can be beneficial for employers as well as their employees, says Sarah Begley

As the number of claims continues to rise since the abolition of employment tribunal fees in 2017, companies need to be more wary of creating an environment that is not only great to work in, but anticipates and understands the way the world is changing. This is not simply a case of updating the employee handbook. Businesses should develop policies and review contracts that commit to ink the intentions a company has towards equality and acceptance. 

Every year, it seems, there are cases and laws to bring the UK closer to accommodating different branches of culture and sub-cultures. And every time that happens contracts should be reviewed and approaches and processes reconsidered. 

With this ever-changing social climate, forward-thinking employers have an opportunity to anticipate legal change and create policies to place themselves ahead of other employers. By creating a ‘special leave policy’ they can accommodate the needs of those cultures that have not yet been considered by legislation, and anticipate those that soon will. Such a policy could cover: the death of a relative, serious ill health of a relative, a domestic emergency, public duties, volunteering, mentoring, infertility treatment, gender reassignment, elective surgery or the death of a family pet. A policy that caters for these situations could be flexible and up for regular debate in the HR department and then taken to the boardroom. 

Many employers already offer time off for such eventualities, but it is very uncommon that anything is written into a formal policy. For instance, there is no right in law to take time off for jury service or medical appointments. Even when an employee takes time off for these regular occurrences, they and their employer can be left in a vulnerable position, which is undesirable in today’s climate of rising employment litigation.

A special leave policy, for example, will protect the employer by ensuring there is a formal method in place to fight against discrimination claims under section 16(2) of the Equality Act 2010, which prohibits an employer from treating an employee less favourably in relation to absence for gender reassignment than it would for any other sickness absence. In addition, having a special leave policy makes a major statement about how inclusive an employer wants to be and gives protection to those who may feel vulnerable. 

We are living in an exciting time for social change, and employment law is moving to catch up. But as with any legislation, it can be a slow process. If employers wait for this they could fall behind. Yes, they may have the letter of the law on their side, but the reputational damage could be irreparable. This is why employers need to be forward thinking and accommodate for change before it happens. Doing so will ensure a legal or reputational defence, but will also provide an opportunity to grow and retain talent. Such a policy encourages inclusivity and an open forum for employees to make requests for time off that previously they may have felt they couldn’t ask for – and that is important for everyone concerned.

Sarah Begley is an employment solicitor at The Wilkes Partnership

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