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Ask the expert: Compassionate leave

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How should an employee be paid who takes time off because a relative is terminally ill? Martin Brewer, partner and employment law specialist at Mills and Reeve, and Esther Smith, partner at Thomas Eggar, explain.



The question:
“A colleague has taken time off because her father is terminally ill. She does not know when she will return to work. What is her position with regard to pay? We do not have employment contracts! Is she entitlement to full pay or just statutory sick pay?”

Jean Pearce

The answers:

Esther Smith, partner, Thomas Eggar
In the absence of any contractual provisions entitling an employee to payment during a period of compassionate leave, an employee will not be entitled to any payment whilst they are off. They will not get statutory sick pay unless they themselves are signed off by a medical practitioner as being unfit for work.

Many employers allow some period of compassionate leave but only within reason and if this employee continues to be absent, the employer could withdraw their consent. The time needed by the employee may fall within the definition of time off to care for a dependent which is protected, but only so far as is reasonable. With terminal illness there may be some uncertainty over the time needed and excessive time away could easily be seen to be unreasonable.

Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information please visit Thomas Eggar

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Martin Brewer, partner and employment law specialist, Mills and Reeve
Jean, first a telling off for not having written contracts. Please reconsider this. It is vital in these days of extensive rights and obligations in the employment sphere to have properly written contracts of employment. It is also a breach of the Employment Rights Act 1996 not to have at least a written statement of the basic terms of employment (pay, hours, holidays etc). Without this you are at the mercy of the courts who may have to determine what the employee’s rights are and are likely to do so in the employee’s favour. OK lecture over.

The employee does not seem to me to have any inherent entitlement to pay (whether normal, sick pay or otherwise). Employees are entitled to be paid for work or because they are available for work. Obviously if you have operated differently or have developed some custom or practice of paying employees in these circumstances then you may be bound by that. But in the absence of any such custom or practice there is no right to be paid if the employee is effectively absent without leave.

Employee are entitled to sick pay only if they are absent because they are sick. This employee is not sick. Sick pay is therefore irrelevant.

You may consider some form of payment on compassionate grounds and, if you do, make sure that it is clear what you will pay, over what period and that you are not setting a precedent by so doing. Make sure that it is clear that each case will be looked at separately. If you don’t want to do that then consider whether the employee should use up holiday entitlement for this leave.

Martin can be contacted at: [email protected]

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