Dear Auntie

I am a HR Manager trying to deal with a sensitive situation that has arisen with one of our longstanding employees. Her husband has recently passed away and she has asked to take a period of compassionate leave. Our contracts and employee handbook don’t refer to compassionate leave, so I would like to understand what our obligations are as an employer when an employee suffers a bereavement.

Yours faithfully
Con Fused

Dear Mr Fused

General position

The general position is that there is currently no specific legal entitlement for employees who are in mourning to be granted paid or unpaid compassionate leave.

Time off for dependents

There is legislation in place that gives employees the right to take a reasonable amount of unpaid time off work to take action to deal with particular situations affecting their dependants. The death of a dependant is specifically mentioned as one of the circumstances where this type of leave can be taken.

A “dependant” is defined as a spouse, civil partner, child or parent, or a person who lives in the same household as the employee (excluding tenants, lodgers, boarders and employees). The particular employee in question in your case would therefore be entitled to such leave, because it is her husband who has died. However, there are situations in which employees may ask for time off in relation to somebody who would not be classed as a dependant, for example a grandparent or a close friend. Such requests would not be covered by the legislation.

When considering how much time to allow, the legislation states that this must be a “reasonable” amount of time. This will therefore depend on the particular individual and the specific circumstances. It should be assessed on a case by case basis and discretion can be exercised by employers in this respect. However, there is Employment Appeal Tribunal case law which has made it clear that the right to time off only extends to an employee being able to deal with logistical matters which arise as a result of a death, such as arranging and attending the funeral. The employees’ rights are therefore fairly limited as it is clear that the legislation does not oblige an employer to provide extended compassionate leave.

Contractual entitlements

I note that the employee’s contract does not provide her with any entitlement to compassionate leave, nor does the employee handbook. Therefore in your case, the employee does not have any contractual entitlement to take leave in the current circumstances.

However, many employers do have compassionate leave policies that set out an employee’s entitlements in these circumstances and if that is the case the employer should follow its own policy. Whilst such policies can have the benefit of making the position clearer and making it easier to apply a consistent approach to employees, they also throw up a number of issues. For example, how long should the leave last for? Should it only cover dependants (as defined above) or should it go further than that? Will the leave be paid or unpaid? Clearly bereavement is something which is very personal and so will affect different individuals in different ways, so having a blanket policy may not be of as much assistance as it would first seem.

Of course, whether there is a policy in force or not, an employer can exercise its discretion to grant leave on a case by case basis. However, when exercising such discretion, care should be taken to do so in a reasonable and consistent way, taking into account any previous custom and practice that has been adopted.

Sick leave

If an employee is particularly badly affected by a bereavement, they may feel that they are not fit to work and obtain a doctor’s note to that effect. For example grief following a death can sometimes lead on to an episode of depression.

In such circumstances the employee would be entitled to take sick leave and to receive statutory sick pay, as a minimum, or any additional Company sick pay that they were entitled to under their employment contract.

Risks of not allowing sufficient compassionate leave

It is in your interests as an employer for employees who come back to work to be properly fit and ready to do so. Forcing a premature return to work, or dealing unsympathetically with an employee on their return to work could lead to an increased risk of that employee developing an illness such as depression and underperforming in their role.

From a practical perspective this is not good for an employer, as such employees will likely be unmotivated whilst at work and also liable to take increased levels of sick leave. There could also be a legal sting in the tail as well, because in a recent Employment Tribunal case, an employer was held to be liable for direct disability discrimination and failure to make reasonable adjustments in relation to the unreasonable actions it took against a recently bereaved employee, after she returned to work and developed depression.

Public Opinion

Campaigners have recently been urging the Government to pass laws which give employees the right to paid bereavement leave and a recent survey conducted by the Change Bereavement Leave campaign found that 70% of people believed that there should be a national guaranteed minimum of paid leave for bereavement.

Public opinion is therefore in favour of such a change in the law. However, whether the Government will actually legislate in this area remains to be seen and would seem unlikely given its stance on cutting red tape.

At the current time, the question of whether or not to allow compassionate leave is left at the discretion of the employer, both in terms of how long to allow and whether it should be paid or not, so clearly the size and financial means of the employer will be a key issue in determining how sympathetic they can afford to be.

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