Can an employee take unpaid leave?

While employers are generally clued up about an employee’s rights for paid annual leave, there is often less clarity around when an employee can take unpaid leave.

There are actually a number of instances when an employee might want to take time off unpaid. The reasons vary, but commonly include caring responsibilities and career breaks.

So, is an employee entitled to take unpaid leave or not? Let’s take a look at the law and why employers might want to consider granting unpaid leave, even when there is no legal requirement.

Can employees take unpaid leave from work?

There is little legislation relating to unpaid leave, especially for SMEs. In the most part, unpaid leave comes down to employer discretion. That said, there are two areas where unpaid leave is protected by law:

• Caring or parental rights such as parental leave
• Time off to carry out public duties, specifically jury service and magistrate duties

Outside of this, unpaid leave approval is at the employer’s discretion.

Types of unpaid leave for parents

Unpaid parental leave

Eligible employees are able to take unpaid parental leave to look after a child’s welfare. According to Government guidelines, parents can take leave to:

• spend more time with their children
• look at new schools
• settle children into new childcare arrangements
• spend more time with family, such as visiting grandparents

Parental leave is unpaid and entitles eligible working parents to take up to 18 weeks’ leave for each child, or adopted child, up until they reach the age of 18. Each parent is limited to 4 weeks in each year for each child, and leave must be taken in full weeks, rather than individual days.

It is important to note that parental leave applies to each child not an individual’s job, and any parental leave already taken is carried across to a new employer.

For instance, if an employee has used 10 weeks of parental leave with a previous employer, they can only have 8 weeks with their new employer once they are eligible.

Shared parental leave

Shared parental leave enables eligible employees to choose how they share their time off work after the birth or adoption of their child. This leave gives parents flexibility on how they share caring responsibilities.

Eligible parents can share up to 50 weeks of leave and 37 weeks of pay and can be off work together or stagger leave to ensure one of them is with their child in the infant’s first year.

For more information on shared parental leave, see the Advisory, Conciliation and Arbitration Service’s (ACAS) guide here.

More about time off for public duties

Employees are entitled to request time off for certain public duties. Some employers choose to pay their employees for this time off, but this is not legally required.

Employees can request a ‘reasonable’ amount of time to carry out duties if they hold a position such as school governor, local councillor or trade union member. However, the employer is able to refuse this request for time off if they think it is unreasonable.

An employer cannot refuse time off for jury service or magistrate service, neither are they obliged to pay for the time taken. If the time off is taken as unpaid leave, the employee can claim for loss of earnings from the court.

When else can an employee request unpaid leave?

There are a full range of reasons for employees requesting unpaid leave. These are at the discretion of the employer and include:

• Time off to study
• Career breaks
• Time off to care for non-dependents
• Healthcare appointments

In some cases, such as the occasional dentist visit, these may be at the discretion of an individual manager. In other situations, such as time off to study, broader business approval may be necessary.

However, relying on a piecemeal approach to unpaid leave can result in disparities across your SME. What if one manager agrees to let their team pop to the dentist without any formalities, while another manager logs the same type of appointment as unpaid leave?

Is an unpaid leave policy necessary?

Creating an unpaid leave policy is a helpful way of laying out what an employee is entitled to in your organisation and helps create a fairer approach to time off.

In addition to statutory unpaid leave, you should include details of other unpaid leave opportunities. This gives employees a clearer idea of what they are able to request and provides managers with a tool to manage their teams more fairly.

The effect of unpaid leave on business culture

As helpful as unpaid leave can be for employees, it’s important to remember that some employee groups will need to use this facility more than others. There’s a risk of creating an unfair balance in your business if unpaid leave is used as the solution to all healthcare and family-related requests.

Disabled employees and those with chronic health conditions need more time off for medical appointments. And, despite changes in society, women are still the primary caregivers in many families. This means they are more likely to request unpaid parental leave than men.

This can result in a pay gap and a culture that’s focused on the able-bodied and child-free.

Instead of relying on unpaid leave, developing a flexible working policy can allow employees to balance their healthcare or caring commitments without taking unpaid time off work. This in turn can contribute towards a more productive and inclusive workforce.

Whether working from home or working more flexible hours, a flexible approach to working can reduce the need for unpaid leave, helping improve employee financial wellbeing and support a positive company culture.