Leave entitlements are a common area for employment disputes. Understanding the statutory entitlements for leave (and pay, where applicable) and ensuring that your policies lay out clearly any discretionary leave you decide to offer can help avoid problems and minimise risk of claims arising.

Outside of statutory minimum requirements, tailoring policies to provide for enhanced leave and pay for what are often big life events - for example becoming a parent, taking time out for caring responsibilities, or dealing with a bereavement - can reflect your organisation’s values and enhance your brand as a family friendly employer. It can therefore be a very effective tool when it comes to attracting and retaining talent.

The Working Time Regulations (Northern Ireland) 2016, The Employment Rights (Northern Ireland) Order 1996 and The Maternity and Parental Leave etc. Regulations (Northern Ireland) 1999 outline statutory entitlements to time off work.

Statutory Rights To Time-off

Holiday/annual leave

Save for a number of exceptional categories such as police and armed services, the Working Time Regulations (Northern Ireland) 2016 apply to all workers whether full-time, part-time, temporary, or permanent, and also apply to agency or freelance workers.

The regulations give a statutory right to 5.6 weeks or 28 days of paid holidays per year. This is based on full time working hours, and is pro-rated for employees working part time. Employers should also be alive to the fact that statutory holiday entitlement accrues in temporary and casual employment, and careful consideration should be given to the contractual arrangements in place if it is not intended that workers are to continue to accrue holiday entitlement during non-working periods. Entitlement to statutory annual leave starts when employment commences. Employers can, of course, at their discretion offer additional contractual holiday beyond the statutory entitlement and this should be clearly set out in the employment contract.

There is no automatic entitlement to receive time off for public/bank holidays and any paid leave given on these days can therefore count towards the 5.6 week statutory leave entitlement. Employment contracts or corresponding policies should clearly lay out your firm’s approach to public/bank holidays. Any public holiday entitlement you grant should also be pro-rated for part-time staff, particularly so as to not disadvantage any working patterns.

As an employer you can decide when holiday should be taken, meaning that, for example, a Christmas shutdown or closing for a particular period during the summer is possible. Restrictions on when holiday can be taken can be laid out in the employment contract, or form part of a collective agreement, or arise from your organisation’s typical practice, for example in the construction sector there is often a common shut down period in July of each year. We would advise outlining your approach in a policy, but in the absence of an agreement or clear policy you can give notice to require employees to take leave but notice should be given in advance,  of at least double the time that is to be taken as leave.

 Family-related Statutory Leave

There are a number of family related rights, and we have previously covered maternity, adoption, shared parental leave and parental leave in detail in some of our previous features, so will only summarise the key points below.

Maternity leave

Statutory maternity leave is 52 weeks and is divided into two categories:

• Ordinary maternity leave of 26 weeks (OML);
• Additional maternity leave of a further 26 weeks immediately following OML (AML).

Mothers do not have to take a full 52 weeks of maternity leave but it is compulsory for them to take the first 2 weeks after the baby is born, for health and safety reasons.  If the mother works in a factory, this compulsory period of leave is increased to 4 weeks.

Note that whilst there is a legal entitlement to 52 weeks’ leave, this should not be conflated with rights to pay which are based on a standard statutory rate for the first 39 weeks of the leave period. Right to statutory pay during maternity is subject to satisfying certain eligibility criteria. Many employers will take the decision to enhance pay during maternity leave and any such rules relating to eligibility for enhanced contractual pay, the rate, and period of time it is paid for, should be clearly articulated in the company’s maternity policy.

Note that the statutory right to maternity leave extends to employees only.

Employers should also be reminded in respect of pregnant employees of their statutory right to paid time off to attend antenatal appointments. Fathers and partners also have a statutory entitlement to unpaid time off to attend two such appointments.

Adoption leave

Entitlement to Statutory Adoption Leave and Pay will be subject to the employee adopting in a way that is covered by the statutory scheme. This will cover placement for adoption via an adoption agency, foster parents approved for adoption under a "fostering for adoption scheme" and parents of a child born to a surrogate mother (also known as "parental order" parents).

Statutory leave and pay entitlement mirrors that of maternity leave

There remains no right to statutory adoption leave or pay in cases of private adoptions, in surrogacy cases where the individual is not eligible for a "parental order", and in cases involving special guardians or kinship carers.

Shared parental leave

If an employee or their partner is having a baby or adopting a child, and subject to them meeting the eligibility criteria, they are entitled to take Shared Parental Leave (SPL). This means that following the first two compulsory weeks of leave that a mother must take immediately after the birth of the child, the remaining 50 weeks can be shared between parents, and up to 37 weeks of statutory pay can be split. This must be shared within the first year after birth, or in the first year after the child is placed with the parents for adoption.

Parental leave

By law any employee with one year of continuous employment is entitled to 18 weeks’ unpaid leave to care for a child for whom they have, or expect to have, parental responsibility for.

The Maternity and Parental Leave etc. Regulations (Northern Ireland) 1999 outline a default scheme for parental leave that applies in the absence of any contractual agreement between employer and employee.

Each parent has the right to take 18 weeks for each child up to their 18th birthday. Therefore in a family with two children under the age of 18, each parent will have entitlement to 36 weeks of parental leave. Of note, the entitlement to 18 weeks of leave is per child and not per employer. Therefore, if any employee with one child has taken 18 weeks’ of parental leave with a former employer, they will not be eligible to take any further periods of parental leave in respect of that child with subsequent employers. This relies heavily on trust and employers who are making arrangements for an employee to take a period of parental leave may wish to ask the employee to confirm in writing if they have taken a period(s) of parental leave prior to their current request.

In addition, unless your policy specifies otherwise, each parent cannot take more than 4 weeks leave per child in any one year.

Note that foster parents, self-employed parents, agency workers and contractors are not entitled to parental leave.

Time off for dependants

Under Article 85A of the Employment Rights (Northern Ireland) Order 1996, employees have a statutory right to a reasonable amount of unpaid time off to take action necessary to provide assistance for dependants. There is no minimum service requirement and it is at your discretion whether this leave is paid or unpaid.

A dependant is defined as a spouse or civil partner, child, parent or someone living in the same household who reasonably relies on the employee for assistance or to make care arrangements when they fall ill, are injured or assaulted.

The legislation does not cover planned time off to care for dependants so planned medical appointments fall outside this entitlement. You may, therefore, wish to consider including a procedure for dealing with time off for such appointments.

Other types of leave

In addition to the more commonly known family related statutory entitlements, there are a number of other important statutory time off rights that are laid out in Part VII of The Employment Rights (Northern Ireland) Order 1996. Note that these rights apply to employees only and the majority require leave to be paid. They include:

• Carrying out trade union activities
• Training for, and carrying out duties as a union representative
• Education and training for 16-18 year olds
• Training to be, and working as a representative of employee safety
• Training to be, and carry out duties as a pension scheme trustee
• Accompanying a colleague to a meeting where they have a right to be accompanied, such as disciplinary and grievance meetings.
• Carrying out duties as an employee representative in redundancy and TUPE consultation processes.
• Time off to look for work after being made redundant

In many cases, the legislation does not prescribe the amount of time off to be permitted other than it should be what is reasonable in the circumstances.

Denying time off for these is not only a breach of legislation but can also increase the risk of claims for detriment and discrimination, and a dismissal for asserting a statutory right to time off will be automatically unfair.

Other Discretionary Leave

Compassionate leave

There is no statutory entitlement to compassionate leave, paid or unpaid, with employers typically providing such leave at their discretion. While there is no legal requirement, providing some form of compassionate leave is a way to show consideration for your employees and reflect your organisation’s values.

Given the wide range of situations to which compassionate leave could extend, a clear policy will give your employees and managers clarity, ensure consistency across the organisation and therefore minimise complaints.

 As with any policy we recommend clearly outlining the circumstances to which it applies and any conditions under which the leave will be given. Are you going to extend to immediate family, extended family, pets, or relationship breakdowns, for example? How many days of leave will be available and will the amount of time depend on who has passed away? Whether leave will be paid or unpaid and how it should be requested and approved should also be clearly outlined.

Moving house/getting married

There is no legal requirement to offer time off in to move house or get married, and many employees will be required to take the time at their own expense or use annual leave in these circumstances.

However, there is a growing trend with employers to provide for a number of days’ of paid time off for significant life events. This may be service linked to reward longer serving staff members. In exercising discretion to operate practices such as this, it is strongly encouraged that these are built into a policy to ensure consistent and fair application. In addition, so as to provide maximum flexibility to amend or withdraw such discretionary entitlements, it is recommended that any policy document is stipulated as non-contractual.

Current trends & developments

The Parental Bereavement (Leave and Pay) Bill was introduced to the Northern Ireland Assembly in June 2021 and is currently working its way through the legislative process at Stormont. It seeks to replicate provisions already introduced in GB last year that provide for leave and pay (subject to a qualifying period) for parents suffering the death of a child or stillbirth after 24 weeks. Legislation would therefore bring in a statutory right to bereavement leave in certain cases.

New Zealand passed a new law earlier this year giving parents the right to three days leave if they suffer a miscarriage or stillbirth. While no UK jurisdiction yet offers statutory leave for miscarriage we are beginning to see some employers introduce discretionary entitlements for this, although such initiatives are still rare rather than commonplace. Locally, for example, we note Lidl’s recent announcement extending its compassionate leave policy to include three days at full pay to all employees across the island of Ireland who experience, or are affected by, early pregnancy loss and miscarriage. Providing such a policy may mean employees do not need to resort to sickness absence or annual leave at a difficult time.

Conclusion

 As an absolute minimum you should be aware of and understand your statutory minimum legal obligations when it comes to time off to avoid the risk of related employment litigation.

Enhancing leave and paid time off beyond the statutory requirements and providing compassionate leave can all help enhance employee relations and your brand as a family friendly employer. Prospective employees are increasingly looking at employer benefits such as leave and pay when it comes to searching for employment so enhancing entitlements can see a return from investment in terms of attracting the best talent and retaining it long term.

In respect of any time off related enhancements that your organisation may offer, consider if a right to leave and pay amounts to a contractual entitlement in which case discretion to make changes to such entitlement will be severely limited. Any changes which do not follow a process of consultation and agreement with employees could amount to a breach of the employment contract.

Clear policies, consistency and training line managers to understand and handle leave related requests appropriately can help minimise complaints and reduce the risk of claims.