There is no legal requirement in the UK for employers to provide compassionate leave. Current legislation only covers “time off for dependants”. This includes leave for emergencies and to organise or attend a funeral, but does not include time off to grieve. It doesn't apply where the deceased is not a dependant (as was the case with Touré and his brother).
When it comes to compassionate leave, there is a gap in the law.
Most employers do exercise discretion. In a recent report, XpertHR noted that of the 730 companies asked more than three-quarters of them had a compassionate leave policy in place. Grieving staff took an average of 11.8 days off using these policies.
Yet because compassionate leave is not protected by UK legislation, employees could theoretically be forced to attend work the day after a bereavement (regardless of how they are coping). They may even be disciplined for any unauthorised absence. Clearly, this is not good for employee morale or retention and it is something the Government and campaign groups have struggled with.
So how should employers approach the issue of compassionate leave and what do they need to consider?
1. It is advisable to have a compassionate leave policy in place that deals with the amount of time off employees can take, in what circumstances, and whether it will be paid. This will provide certainty and consistency for staff and will send a message that you operate a genuinely supportive working environment.
2. Provide training to managers so that they can deal with staff bereavement and family illness sensitively. You may also wish to offer grieving staff an employee counselling service.
3. In a recent National Council for Palliative Care report, more than half of employees asked said they would consider leaving their job if their employer did not support them adequately at a critical time. Failing to demonstrate commitment to employees as individuals may damage working relations and morale, which could in turn affect staff retention and loyalty.
4. If an employee is not supported or feels under pressure to return to work before they are ready, they may struggle to cope. This could result in them being signed off work by their doctor. In such cases, the drive to get them back into the office is self-defeating both financially (the employer will have to pay statutory sick pay thereby negating the cost 'saved' by refusing the employee paid compassionate leave) and from a resourcing perspective. It could also expose you to the risk of claims for stress, personal injury, discrimination or harassment.
5. There are risk-management issues to consider if a grieving employee (who is not sleeping well, is finding it difficult to concentrate, or is struggling emotionally) is in work, attempting to perform their day-to-day role. They are unlikely to be productive and may make costly mistakes.
Grief affects everyone differently – the needs of an employee who has lost a parent will not be the same as for those who have lost a child. It is almost impossible to be prescriptive about human nature, and sensitivity needs to be balanced with operational requirements. Employers would be well advised, therefore, to be consistent and fair, but flexible.
Francesca Lopez is an employment solicitor at Kingsley Napley LLP