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Employment law guide

Absence from work

The fundamental concept of employment is that an employee works for their employer at the times and places agreed in their contract of employment.

An employee’s absence from work is often the basis for disputes between employers and their staff.

The Working Time Regulations and other industry specific regulation, like those that regulate driver’s hours, control the number of hours that an employee can work before having to have a break and also time off work. In addition every worker now has to have at least 5.6 weeks’ paid annual leave.

How and when an employee takes his holiday will be regulated by his contract of employment. For example many employers have periods of annual shutdown when the workplace is closed and staff are obliged to take their holidays.

Apart from holidays the law also provides that employees have a right to take leave from work for different reasons. These include:

Although there is no law that specifies that an employee is allowed to have leave from work for jury service the effect is the same because subject to certain exclusions most employees are liable to serve as jurors and failure to do so is contempt of court. Dismissal for taking time off for jury service would be unfair dismissal.

Absence due to sickness

Apart from holidays or other statutory leave the most common reason for an employee being absent from work is time off because the employee is sick. An employee who takes time off claiming to be sick when they are not sick will be guilty of misconduct and subject to discipline and even dismissal.

Most employers have terms in their contracts or procedures that specify the way in which an employee must report sickness. The contract of employment should provide whether an employee would be paid when off sick. If it does not provide any period of paid sickness then the only obligation is to pay Statutory Sick Pay.

Long-term sickness may prevent an employee’s capability to do their job and entitle their employer to terminate the employment. To avoid such a dismissal being unfair the employer should follow a fair procedure and obtain evidence about the employee’s capability either from the employee’s own doctors or by arranging an examination by an occupational health specialist. Only when there has been consultation with the employee and consideration of alternative employment can a decision that the employment is brought to an end be made. Where the sickness is likely to last for 12 months or more, or otherwise amounts to a disability as defined by the Equality Act, then the employer must avoid discriminating against the employee, and consider all the reasonable adjustments that can be made to enable the employee to continue working or return to the workplace in the future.

Compassionate leave of absence

In the event of a member of an employee’s family who lives with them, being taken suddenly ill, then leave to make arrangements to care for them may be taken under the right for time off to care for dependents. However this is not applicable to non-dependent members of the family or for non-emergencies. An employer who dismissed someone simply because they took time off to care for a relative taken ill or because of the death of a relative would be acting unfairly but equally there is no right to take leave on bereavement unless it falls within the right to take time off to care for dependents. There is no right to be paid for such leave either. Undoubtedly taking time off to arrange a funeral and to attend it falls within the right to leave where the deceased is the employee’s spouse, partner, child, parent or other family member who lives in their household.

Enforced absence due to arrest or a custodial sentence

If someone is arrested and held in custody or receives a custodial sentence they will obviously not be able to attend their work.  An employer may find such an event entitles him to dismiss the employee either for gross misconduct or for some other substantial reason. Alternatively it will automatically bring the contract to an end because it is frustrated by the impossibility of the employee performing his part of the contract. This will almost certainly be the case if the employee is sent to prison for a substantial period.

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