Divorce and the workplace

Karen Holden from A City Law Firm on how divorce affects the workplace and why being empathetic can be a win win for employee and employer.

man and woman getting a divorce

Couple with divorce contract and ring on desk. Divorce

The pandemic has significantly highlighted the importance of the wellbeing of employees for employers. Mental health and Long Covid have brought changes to the Employment Tribunal outlook, with a growing number of discrimination and disability cases being seen. Emotional welfare and the impact on mental health is increasingly a consideration for employers from a legal point of view as well as a moral one.

Next week is Good Divorce Week and as an employer or employee, the impact of divorce as a stressful life event is significant. 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. The new ‘No Fault Divorce’ is likely to increase these figures and the court system that supports divorce, finance and child arrangements is heavily backlogged, with increasing delays bringing ever more anxiety and stress for those involved. The personal stress can have a huge effect on employees’ mental health, with anxiety, stress and depression being possible effects.

Can employers contribute to a ‘good divorce?’

The short answer is there is no mandatory support on offer when an employee is divorcing. The employer has an obligation to ensure that the employee is not facing discrimination, for example, as a consequence of childcare issues on becoming a single parent or that the employer is not doing anything harmful to cause injury or ignore any disability triggers.

Supporting an employee during a stressful time and being mindful of their mental health during that time should, of course, be encouraged. On the personal front, it is about repaying an employee’s loyalty and, on a commercial front, it is more cost effective to look after the employees that you have already trained than to find a replacement if they leave due to the pressures of the breakdown.

Invoking disciplinary and performance reviews as a consequence of personal stress impacting performance is often costly and distracting for all parties.

Employer reputation is also important as, if an employee has a particularly bad time and their employer reacts negatively, they will let others know and in the changing culture of holistic employee welfare, it is not good publicity. Additionally, good staff engagement and therefore performance is better for business and for customers so keeping morale up is essential to good business practice.

How can an employer help?

Time off
An employee may need additional time off when going through a divorce or relationship breakdown. Whilst there is currently no statutory provision for time off for this reason, there are ways of accommodating time off on the following basis:

1. Annual leave entitlement or unpaid compassionate leave;
2. Where children are involved, employees may be able to take paid parental leave. They 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 the leave should be taken in blocks of one week.
3. All employees have a legal right to request flexible working from their employer after 26 weeks. This may not be agreed for various reasons. However, 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 entitlements, employees might be able to negotiate other paid or unpaid leave depending on their contract or employer polices. The workplace environment should be such that those possibilities are easily explored by employees with the employer.

Additional support

Employees who are divorcing could be signposted to support services and some employers offer a benefits programme of leave, counselling and divorce coaching. Employees who have accessed a type of unpaid leave during divorce report that this was a big part of them being satisfied with their employer’s response.

Knowing that there is access to counselling, legal advice, tax advice or coaching via the employer is a huge benefit to an employee during a difficult life event such as divorce and also encourages a further layer of employee loyalty.

Managing work versus personal life
In some situations the employee may be underperforming as a result of what they are experiencing and the stress levels involved. A performance plan can be necessary to assist the employee. Performance plans must be fair and identify the areas in which an employee needs to improve, providing a time period for improvement which is then objectively reviewed in accordance with 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 are not available or are refused. There may also be instances where the work situation becomes so difficult that they need to constructively dismiss themselves. Clearly, this is not ideal and has to be carefully considered from both the employer and employee perspective.

The benefits of support

An employer’s role during a divorce can make a significant contribution towards a Good Divorce. Supportive workplaces are contented, productive workplaces with good staff retention. Although formal policies on divorce are not legal requirements, an agreed workplace approach of how best to support those going through divorce, can only be of benefit to both employer and employee.

We urge employers to consider their policies and processes; how they reach out to staff and how they handle these matters internally. We have seen many employers engage us , for example, to give internal talks to staff and management and some have also asked for wellbeing vouchers which include free legal advice with their legal partners or coaches and counsellors who can offer support and a holistic approach regarding a difficult life event and create a stronger likelihood of a Good Divorce. Employers can avoid claims or losing staff, but importantly build trust and committed staff if they think differently and supportively in this way.

*Karen Holden is founder of A City Law Firm

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