Karen Holden from A City Law Firm outlines what employers can do to support employees going through relationship breakdowns to ensure the impact on work is minimised.
The Office for National Statistics now records that there are more than 100,000 divorces every year in England and Wales and this does not include other relationship breakdowns. Many of these divorces and other relationship breakdowns will occur during the working lifetime of the parties and therefore employers are likely to regularly encounter those going through this difficult time. So why and how can UK employers assist through employees going through a divorce or relationship breakdown?
The main reasons that a company may want to support their employees during a divorce is to avoid staff turnover and increase loyalty. It is much more cost-effective to look after the employees that you have already trained up than find a replacement if they leave due to the pressures of a breakdown and going through disciplinary and performance reviews is often costly and distracting for all parties.
Secondly, reputation is important. If an employee has a particularly bad time and their employer reacts badly, they will let others know about it and damage to reputation could follow.
Additionally, good staff engagement, and therefore performance, is better for the business and customers so keeping morale up is essential to good business practice.
Employers must walk a fine line when assisting employees going through a divorce. Firstly, if an employee decides just to share what is going on without requesting further assistance or time off, then the employer will need to take care not to breach the confidence of the employee. In this situation other staff members are unlikely to need to know and that may be how the employee wants it and they are entitled to confidentiality.
For other situations where a performance plan, leave or flexible working is required then the employee’s situation may need to be shared with several employees or managers on a need to know basis. This should always be done only with the employee’s consent given the sensitive nature of the situation. Poor handling of confidentiality could make things worse for the employee and, coupled with other failures, might make the employer at risk of a claim.
An employee may need additional time off when going through a divorce or relationship breakdown. Whilst there is currently no statutory provisions for time off for someone going through a divorce or relationship breakdown, there are alternatives available to an employee such as:
1. Annual leave entitlement or unpaid compassionate leave;
2. Where children are involved, they may be able to take paid parental leave. Employees are entitled to 18 weeks’ leave for each child and adopted child, up to their 18th birthday. There are requirements as to how this is taken and who gets this leave. For example, you must have been with your employer for one year and it should be taken in blocks of one week.
3. All employees have a legal right to request flexible working from their employer. This may not be agreed for various reasons, but, where it can be accommodated by the employer, this is an excellent way to show they are assisting. For example, where an employee has new obligations for the school run, different working hours could easily be accommodated.
In addition to the statutory entitlement, employees might be able to negotiate other paid or unpaid leave depending on their contract or polices.
An employer should consider requests carefully and in a non-discriminatory manner, but ultimately business needs can be weighed up.
Studies have shown that many employees report that they have required further support from their employer at this time through a benefits programme of leave, counselling and divorce coaching. Many employees reported that they accessed a type of unpaid leave during divorce which was a big part of them being satisfied with their employer’s response. Not only does this help employees easily attend court hearings and be on hand for any extra childcare involved, but the time away from work can assist with employees not having to explain themselves for early finishes or court dates.
It is important that you properly engage with any staff who have put you on notice of a relationship breakdown to see if they require any further support. This should not be organised without consulting with your employees first to see if it is appropriate and actually wanted by the employee.
There may also be tax consequences for any paid-for support or benefits provided which should be taken into consideration.
There may even be extreme cases, where an employee requires protection such as those with a non- molestation order against their partner or spouse. If you are notified that an employee has a non-molestation order in place you should consider what reasonable steps and safeguards you as an employer should be putting in place to protect that employee. You should work carefully with the employee to take into consideration their concerns and feedback. It is important to listen to your employees and be flexible with your response.
Protecting the member of staff may include dealing with third parties, such as the police, if there is a criminal investigation or harassment order in place. It may also include having another employee walk them to their car at the end of the day (or other assistance with travel) where a violent spouse may require this.
Performance issues and termination
In some situations the employee may be underperforming as a result of what they are experiencing. A performance plan will be necessary to hopefully assist the employee to access assistance where it can be provided. Performance plans must be fair and identify the areas in which an employee needs to improve, providing a time period for improvement and then an objective review of whether they have met those targets.
The employer should take care that, in these instances, the performance plan should only judge the employee in the same way that other employees are judged. There should be no greater or different scrutiny for those going through a divorce or separation. That said, unless there were other protected characteristics, there would be no grounds for discrimination were the employee terminated simply because they are going through a divorce or marital breakdown.
There may be scenarios where an employee has asked for assistance and all possibilities have been refused. There may also be instances where the work situation becomes so difficult that they need to constructively dismiss themselves. This has to be carefully considered and an employee should take specific legal advice prior to taking a decision to constructively dismiss themselves as this is often a complex situation.
We would hope that many employers take a pragmatic approach to supporting the wellbeing of their staff and take a flexible approach to those going through a relationship breakdown. Whilst there may be scenarios where an employer will attract liability, such as in the case of a member of staff’s safety where they are on notice of violence from a former partner, on the whole it will be the commercial decision of the employer as to how much or little they involve themselves in the personal lives of their employees, especially when this is not impacting on their work.
*Karen Holden is founder of A City Law Firm. Having been admitted to the roll in 2005. Karen was invited and given freedom of the City in 2019 for her work in Equality as such is part of the Guild of Freeman. A City Law Firm are employment law experts and are experienced in advising both employees and employers. If you have any queries relating to any aspects of employment law you can contact them for a confidential discussion.