Should Employers be creating a Special Leave Policy?*

By August 8, 2019Employment Law

Should Employers be creating a Special Leave Policy?


Many employers will have a Bereavement Leave policy to cover the death of a spouse or family member. We set out some guidelines in relation to this in the last issue of our newsletter.

It is usual now for employers to have a Compassionate Leave policy and to a certain extent a Special Leave Policy.

Employers traditionally would have had a Special Leave Policy to cover such issues as a special care matter which might arise for a child or, to facilitate an employee taking time off for an exam. Matters have now changed. Some employees will now be looking for time off for cosmetic surgery. This might be as simple as time off for dental treatment to get the perfect white smile. There may be other type of requests for time to grieve for a much loved cat or dog. These animals are now becoming part and parcel of a “family” in many cases.

Employers need to be looking at introducing Special Leave Policies to deal with the pleather of unusual requests for leave.

Statutory Rights

Employees have various statutory leave entitlements. This would include statutory rights to holidays. There are various types of family leave, if we can call them that, from everything to maternity leave to parental leave, to paternity leave to carers leave.

There is no right in law to take paid time off for jury service but of course an employer can be open to prosecution and Unfair Dismissal claim if an employee was to be dismissed, or prevented from attending for jury service. There is no right to take time off for sickness. In reality there will be times when an employee is unwell and is incapable of working. Employees will have various medical appointments. Unless they are related to maternity there is no statutory right to time off. Even though there is no legal entitlement normally employers will want to cover same.

Rights which might be considered as part of any Special Leave Policy

In addition to the statutory entitlements employers need to look at policies that will give time off where a dependant is ill, gives birth, is injured or is assaulted or to deal with unexpected childcare issues or issues arising at a school or in consequence of the death of a dependant. Some of these will be covered by statutory rights but the statutory entitlement to Force Majeure Leave is a very limited and restricted right.

Issues may arise relating to a disciplinary or grievance procedure where your policy will provide that an employee can have a colleague accompany them. Again this needs to be covered in a policy so that that employee knows that their entitled to accompany somebody and that this is paid time off. There may be issues such as time off to perform duties as a pension trustee. Time off to perform duties as a health and safety representative, time off as a trade union member or representative. You might wish to consider time off to carry out certain public duties such as being a member of a school board or on a charity.

Unless an employee has a statutory right to take leave or has been granted a contractual right to leave, an employee will generally require consent to take time off for other reasons. It is useful for employers to consider other requests carefully and not to dismiss a request outright. By developing a Special Leave Policy it is one which an employer can change from time to time. It allows absences to be controlled and addressed and that employees will know how much time they may be allowed off. In some businesses employee involvement in local sport clubs may well be a source of attracting new business or promoting the business. However some limits on what would be allowed as paid time off or even as unpaid time off needs to be addressed.

Why have a Special Leave Policy

A Special Leave Policy will assist both employers and employees. For employees it makes sure that they are informed that there is no statutory or contractual right to take the special leave. It will highlight circumstances when they might still wish to try and take time off and how an employer will deal with such a request. For an employer it will set out clearly who deals with such requests and how. It would also help to minimise the risk of claims by ensuring requests are dealt with fairly, consistently and in a proportionate manner without being rejected out of hand. It will also have the benefit for both employers and employees as to what is going to be considered.

How should employers address this issue?

When drafting a Special Leave Policy it is our view that employers should consider setting out the statutory form of leave which employers will have. It should also set out any other leave policies which the employees should first consider. It should encourage employees to give as much notice as possible. The employee should be aware that if they give inadequate notice that this may not be granted particularly if adequate notices could have been given. It should set out how to make an application. In an ideal world this would be on a designated form setting out the requested dates for the leave and the reasons for the request.

The policy should set out who will deal with such requests. This may be a line manager or it could be somebody else for example the HR department in larger organisations.

It is important that the policy would confirm that any Special Leave Policy is in addition to rather than in substitution for any statutory or contractual rights.

In certain cases it will be very clear that the special leave is unpaid. If it is to be paid, which will be unusual, it is important to set out in what circumstances the leave would be paid.

Because of the way certain individuals may be involved in various social functions the opportunity to start earlier and finish earlier, if that is an option can be dealt with under the Special Leave Policy. It may be the other way round that they start late and finish late. By having this covered under a policy it avoids claims by other employees that they should be treated in a similar way simply because they want to start earlier.

Any such policy should confirm that unauthorised absences may result in disciplinary action up to and including dismissal under the disciplinary policy. It should be clear that the policy is not contractual and can be amended by the employer from time to time at the absolute discretion of the employer. It should set out the type of time off which may constitute special leave.

The policy should set out examples. However it should be somewhat fluid in that issues may arise which employers may not have thought of. The normal type of issues which may arise would be possibly the serious health of a relative where the employee will not be able to claim Force Majeure Leave. There could be a domestic emergency such as a boiler break down or a house fire. There could be issues such as volunteering, mentoring, elective surgery, time off for hobbies, religious ceremonies and even down to the death of a family pet. Including a family pet may seem rather minor. To some it may. To others they can be nearly more attached to a family pet than they may be to some of their relatives. There needs to be a degree of sensitivity also as regards making applications. Some employees may need time off for such matters as infertility treatment, possible gender reassignment or elective surgery including plastic surgery. Asking a line manager in such situations may be something that an employee would be concerned about.

For this reason it is important to ensure that employees seeking this special leave will know that regardless as to whether it relates to a personal issue relating to them or such as infertility treatment or relating to volunteering or particularly religious ceremonies also that they know that these will be dealt with in a private and confidential way.

Special leave – some issues to be careful of

Elective surgery. The number of reality TV shows has resulted in a demand for elective cosmetic surgery. Of course an employee is not entitled to take time off for cosmetic surgery. However it is important that employers are aware that some of this cosmetic surgery has an underlying mental health issue particularly if an employee feels depressed because of a body image. Therefore we would advise that employers would treat such requests fairly and in a sensitive way.

Infertility treatment. There is no statutory right to take time off for such treatment. There is a right to take time off for anti-natal appointments but this does not apply unless the employee is actually pregnant. In the area of infertility treatment it may be advisable to confirm that medical appointments should be taken outside office hours where this is practicable. An employee who is undergoing infertility treatment may well require a number of appointments. These can be dealt with in a similar way as an employee undertaking multiple medical appointments.

Normally you would say that an employee who is off sick as a result of infertility treatment should be treated in the same way as an employee on any other sickness absence.

The European Court of Justice held in the case of Mayr –v- Bacherei Und Kondidorei Gerhard Flockner OHG case C-506/06. In that case the CJEU held that the prohibition on the dismissal of a female worker who is at an advanced stage of in-vitro fertilisation is not allowed. In addition in circumstances following the implantation of fertilised eggs the employee may end up on sick leave and as this leave arises because she is a woman. If the employee is dismissed this could be a claim for sex discrimination.

In practice an employee is not obliged to inform an employer of the nature of her infertility treatment. The employer may therefore not know when she is deemed pregnant. Employers should exercise extreme caution to avoid pregnancy discrimination. This is one of the reasons to have very clear policies including special leave for such treatment.

Gender Reassignment. Again this is becoming an issue in business for employers dealing with employees.

In the UK there is a Code of Practice which deals with the issue of transsexual staff and discussions with them about the need for time off in relation to gender reassignment and how these can be accommodated. We do not have any such policies here in Ireland. Again however extreme caution is required because issues can arise which can result in discrimination claims.

Exercising your discretion. There are statutory rights. These are written in law. Every employee is entitled to same.  Employers will be aware off and will respect same. Employers have a wide degree of discretion as to how to manage requests for time off. Because there are these type of requests it is prudent to have a Special Leave Policy. This has the advantage of having requests being treated openly, in a consistent way, and fairly. It has the further advantage, for an employer, of been seen to be proactive and creating a positive working environment.

*Before acting or refraining from acting on anything in this guide, legal advice should be sought from a solicitor.

**In contentious cases, a solicitor may not charge fees or expenses as a portion or percentage of any award of settlement.

Richard Grogan

Author Richard Grogan

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