Dear Hrlaw Auntie,
I am the HR Manager of a call centre in London. Some of our employees are Pakistani and following the recent devastating earthquake in Pakistan, a number of our employees left messages for me the following day informing me that they have gone to Pakistan to search for missing relatives and to care for the children of relatives who have been affected. Whilst on the one hand we want to be compassionate and treat these employees fairly, at the same time from a commercial point of view it is very inconvenient for the business to have a significant number of employees off work at the same time. Most of these employees have failed to comply with the company’s notification procedures in that they have not requested the time off work in advance, although I appreciate that there was no advance warning of this natural disaster.
Devastated about disasters
Thankfully natural disasters do not occur very frequently and therefore if the employees who have taken time off to go to Pakistan are genuinely hard working, you may wish to adopt a flexible, compassionate approach to their absence, whilst at the same time balancing this against the commercial needs of the business to have a sufficient number of employees there to get the job done. So how should you treat the unannounced leave which they have taken?
The absence would fall outside the scope of the statutory right to take a reasonable amount of unpaid time off during working hours to deal with certain unforeseen situations relating to a dependant. This is because a dependant is defined as being a spouse, child, parent or person who lives in the same household as the employee (other than a tenant, lodger or employee). As your employees’ relatives live in Pakistan, not in their households, they do not fall within this definition. Whilst strictly speaking this is an unauthorised leave of absence, you may wish, in such extenuating circumstances, to treat the time off as paid leave. Another alternative is to require the employees to take the time off as holiday or alternatively you could grant it as unpaid leave. Much will depend on what your non-contractual policies state, if you have any policies which deal with time off for emergencies.
In order to avoid any allegations that you have acted in breach of the implied duty of mutual trust and confidence that exist between every employer and employee, or even of race or nationality discrimination, you should ensure that you adopt a consistent approach in similar situations, for example if some of your employees took time off following 9/11 to go to New York to search for relatives or to support relatives who had been affected, you should treat your current employees who have taken time off to go to Pakistan consistently with those who went to New York.