Decisions relating to time off

Your employer must avoid unlawful discrimination when making a decision about time off. Decisions about time off might range from who takes their holiday when to how your employer records workers' absences.

Use the list to make sure you know what equality law says your employer must do to avoid unlawful discrimination.

This section of the guide covers the following:

  • Direct and indirect discrimination
  • the specific age exception allowing different levels of annual leave based on length of service of up to five years
  • Reasonable adjustments to remove barriers for disabled people and avoiding discrimination arising from disability
  • Requests for time off relating to a worker’s religion or belief
  • Requests for time off relating to a worker’s gender reassignment
  • Pregnancy-related absences
    • sickness absence
    • ante-natal care
  • Maternity, paternity and adoption leave

Some types of leave, such as holiday, count as a benefit and are treated in the same way as pay. You can read more about what this means in the Equality and Human Rights Commission guide: Your rights to equality at work: pay and benefits.

How employment law and equality law interact

Employment law (rather than the equality law which is explained in this guide) sets out people’s rights to:

  • A minimum number of days of paid time off
  • Paid and unpaid maternity leave
  • Paid paternity leave
  • Paid and unpaid adoption leave.
  • Unpaid parental leave
  • Unpaid family emergency leave in certain circumstances (for example, if a worker’s usual childcare or care for other family members who depend on them is not available at short notice)
  • Paid or unpaid time off for public duties and trade union responsibilities.

You can find out more about these rights at Directgov, whose contact details are found within Further sources of information.

In general, equality law applies not to whether you have a right to time off, but how your employer makes decisions about:

  • who gets to take time off, when and how much
  • whether the time off should be paid or unpaid
  • how your employer records different types of absence.

Exceptions to this, where equality law does affect whether someone has a right to time off, are:

  • Time off as a reasonable adjustment to remove barriers for disabled people
  • Gender reassignment leave
  • Pregnancy-related absence.

These situations are explained in the next section of this guide

Your employer must avoid unlawful discrimination when making a decision about time off. Decisions about time off might range from who takes their holiday when to how your employer records workers’ absences.

Use the information earlier in this guide to make sure you know what equality law says your employer must do to avoid unlawful discrimination.

This section of the guide covers the following:

  • Direct and indirect discrimination
    • The specific age exception allowing different levels of annual leave based on length of service of up to five years
  • Reasonable adjustments to remove barriers for disabled people and avoiding discrimination arising from disability
  • Requests for time off relating to religion or belief
  • Requests for time off relating to gender reassignment
  • Pregnancy-related absences
  • sickness absence
  • ante-natal care
  • Maternity, paternity, adoption and parental leave.

Some types of leave, such as holiday, count as a benefit and are treated in the same way as pay. You can read more about what this means in the Equality and Human Rights Commission guide: Your rights to equality at work: pay and benefits.

Avoiding direct and indirect discrimination

If your employer:

  • refuses a request for leave because of a protected characteristic, or
  • pays some people more than others during their time off because of a protected characteristic, or
  • gives some people more leave than others because of a protected characteristic

this is likely to be direct discrimination, unless employment law or equality law specifically allows an employer to do this (as it does with maternity leave, for example).

If your employer:

  • says that everyone has to take leave at a particular time of year, or
  • sets conditions on when someone qualifies for extra leave

this may have a worse impact on a person with a particular protected characteristic and others with the same characteristic than it would have on people who do not have it. Unless your employer can objectively justify what they are doing, this may be indirect discrimination.

The specific age exception allowing different levels of annual leave based on length of service of up to five years

Equality law allows an employer to make a distinction between workers in pay and benefits based on length of service, including how much annual leave they get.

An employer can give workers with less than five years’ service different holiday entitlements to those with more than five years without having to objectively justify this.

For example:

To encourage workers to stay with them for more than two years, an employer gives workers an extra day’s paid annual leave for each complete year of service, up to five years. The exception allows the employer to do this without having to objectively justify the practice. This applies even though it is harder for younger employees to qualify for the extra leave and is therefore, on the face of it, indirect age discrimination against the younger workers.

Length of service can be worked out in one of two ways:

  • by the length of time that the employee has been working for the employer at or above a particular level, or 
  • by the length of time the employee has been working for the employer in total.

If an employer uses length of service of more than five years to award or increase a benefit, this falls outside the exception.

But there is a further difference: an employer may still be able to use length of service of more than five years to make decisions about holiday entitlement if they reasonably believe that using length of service in this way fulfils a business need.

They may believe it rewards higher levels of experience, encourages loyalty, or increases or maintains workers’ motivation.

This is a less difficult test than the general test for objective justification for indirect discrimination. However, an employer still has to have evidence to support their belief that it did fulfil a business need.

For example:

An employer wants to give an extra five days’ annual leave to workers after ten years’ service. The employer can only do this if they reasonably believe this practice fulfils a business need.

Reasonable adjustments to remove barriers for disabled workers and avoiding discrimination arising from disability

Employers sometimes use workers’ sickness absence records to help them make decisions about things like: 

  • promotion
  • bonuses
  • redundancy
  • references.

If you are a disabled person and your employer treats time off taken by you which relates to your disability in exactly the same way as they treat sickness absence taken by a worker who is not disabled, this may result in your being treated worse than another worker because of something arising from your disability.

For example:

A worker who is a disabled person requires a day off every month for physiotherapy related to their condition. The employer records these days off as sickness absence. When the employer is deciding which staff to pay an annual bonus to, one of the tests is having had fewer than five days’ sickness absence in the year. The disabled person is therefore not eligible for the bonus. They have been treated worse than other workers because of something arising from their disability (the need to take time off for physiotherapy). To avoid this being unlawful, the employer must be able to objectively justify it. 

Instead of trying to objectively justify the application of the rule in this way, the employer decides to record the absence related to the worker’s disability separately from ordinary sickness absence. The employer excludes these days from the worker’s sickness absence record when working out eligibility for the bonus. Recording the leave separately like this would probably be a reasonable adjustment.

Once your employer knows that you come within the definition of a disabled person, to avoid:

  • direct or indirect discrimination because of disability, or
  • discrimination arising from disability

and to make sure that they have complied with the duty to make reasonable adjustments your employer should:

  • Record your disability-related time off separately from general sick leave. This will mean that they are not calculating bonuses or making other pay or employment decisions in a way that may unlawfully discriminate against you.
  • Stay in touch if you are absent for a long period to find out how you are and to tell you what’s happening at work (though they should make it clear they don’t expect you to come back to work before you are ready).
  • Think about a plan for your return to work, for example, arranging for you to start work again gradually or to do some work at home before you come into the office, if this is possible in your job.
  • Consider reasonable adjustments with you and, if necessary, use expert advice to work out what reasonable adjustments can be made for when you are ready to return to work. If a change is reasonable, your employer must make it.

Your employer does not have to pay sick pay beyond what they normally pay just because your time off is disability-related. But it may be a reasonable adjustment to:

  • extend your sick pay
  • offer unpaid ‘disability leave’, or
  • allow you to take the extra time off as annual leave.

If the reason you are absent is because of a delay by your employer in implementing a reasonable adjustment that would enable you to return to the workplace, maintaining full pay may well be a further reasonable adjustment for your employer to make.

For example:

A woman who has a visual impairment needs work documents to be enlarged. Her employer fails to make arrangements to provide her with these. As a result, she has a number of absences from work because of eye-strain. After she has received full sick pay for four months, the employer is considering a reduction to half-pay in line with its sickness policy. It is likely to be a reasonable adjustment to maintain full pay as her absence is caused by the employer's delay in making the original adjustment.

Your employer could also change the targets expected of someone so that that person has an equal chance of earning bonuses.

For example:

A worker in sales takes every Thursday afternoon as unpaid leave for a disability-related reason. As a reasonable adjustment, their employer reduces their sales target to reflect their absence. Their team’s target is also reduced by a proportionate amount.

Requests for time off relating to religion or belief

If a worker’s religion or belief has special festival or spiritual observance days, they may ask for time off at a particular time in order to celebrate festivals or attend ceremonies.

If  your employer refuses to allow you time off a religious observance day because they want everyone working that day, this may be indirect discrimination unless the employer can objectively justify their refusal. Although the employer may have strong reasons for needing you to come into work on a particular day, they should remember that it may be extremely important to you that you do not work on the relevant day.

General rules regarding when annual leave can be taken or annual shut-downs, can indirectly discriminate against workers if they coincide with religious holidays and the employer does not allow you to have time off on the relevant dates.

Similarly, a rule that workers cannot take their leave all at one time may discriminate against you if you want to go on a religious pilgrimage. In all cases, to avoid a refusal being indirect discrimination, the employer needs to be able to objectively justify saying no.

Requests for time off relating to gender reassignment

If you are a transsexual person your employer must not treat you worse for being absent from work because you propose to undergo, are undergoing or have undergone gender reassignment than they would treat them:

  • if you were absent because you were ill
  • if you were absent for any other reason, and it is unreasonable to treat you worse.

This includes not treating you worse when your employer makes a decision about what time off you should have. If your employer would agree to a request for time off for someone to recover from an injury, then they should not refuse your request for time off for part of a process of gender reassignment. The request does not have to relate to a medical process. It could, for example, be for electrolysis to remove hair or for counselling. 

Sickness absence

Special rules apply to sickness absence which is related to a woman’s pregnancy or to her having given birth.

Employers should record pregnancy-related illness separately from other kinds of illness and should not count it towards someone’s total sickness record.  

An employer should not pay a woman who is absent for a pregnancy-related illness less than the contractual sick pay she would receive if she was absent for any other illness with a statement of fitness to work (‘fit note’). 

An employer must not take into account a period of absence due to pregnancy-related illness, or maternity leave, when making a decision about a woman’s employment, for example, for disciplinary purposes or if they are selecting workers for redundancy. Sickness absence associated with a miscarriage should be treated as pregnancy-related illness.

For example:

A worker has been off work because of pregnancy complications since early in her pregnancy. Her employer has now dismissed her in accordance with the sickness policy which allows no more than 20 weeks' continuous absence. This policy is applied regardless of sex or pregnancy and maternity. The dismissal is unfavourable treatment and would be unlawful pregnancy discrimination even if a man would be dismissed for a similar period of sickness absence, because the employer took into account the worker’s pregnancy-related sickness absence in deciding to dismiss.

You can find out more about what employers should do in this situation using the Equality and Human Rights Commission’s Guidance on managing new and expectant parents.

You can read more about pay during pregnancy and maternity leave in the Equality and Human Rights Commission guide: Your rights to equality at work: pay and benefits.

Ante-natal care

An employer must give a pregnant employee time off for ante-natal care. Ante-natal care can include medical examinations, relaxation and parenting classes.

For example:

A pregnant employee has booked time off to attend a medical appointment related to her pregnancy. Her employer insists this time must be made up for through flexi-time arrangements or her pay will be reduced to reflect the time off. This is unlawful: a pregnant employee is under no obligation to make up time taken off for ante-natal appointments and an employer cannot unreasonably refuse paid time off to attend such appointments.

The right for paid time off does not extend to the partners of pregnant women, although an employer could choose, as a matter of good practice, to allow someone to take annual leave or unpaid leave or to work flexibly to support their partner.
If an employer does allow this, they should make sure that they do not discriminate unlawfully in their approach.

For example:

An employer allows a man whose female partner is pregnant to take annual leave to attend ante-natal appointments with her. The employer refuses a similar request from a woman whose female partner is pregnant. This is likely to be direct discrimination because of sexual orientation.

Maternity, paternity, adoption and parental leave

When dealing with workers who request or take maternity, paternity, adoption or parental leave, your employer must make sure they do not discriminate against a person because of a protected characteristic.

For example:

A lesbian has asked her employer for unpaid parental leave. She and her partner adopted a child two years ago and she wants to be able to look after her child for part of the summer holidays. The worker made sure the time she has requested does not conflict with parental leave being taken by other workers. In exercising their discretion whether to grant parental leave, the woman’s line manager refuses her request because they do not agree with same-sex couples being allowed to adopt children. This is likely to be direct discrimination because of sexual orientation.

You may be interested in the practical guidance for employers on managing maternity, paternity, adoption and parental leave in the Equality and Human Rights Commission’s New and expectant parents toolkit. Your questions answered

Q. As a woman, do I have a right to time off to have fertility treatment?

A. Neither equality law nor employment law gives a woman a right to paid time off for in vitro fertilisation (IVF) or other fertility treatment. . But in responding to any request, the employer must not treat a woman worse than they would treat a man making an equivalent request for time off.

For example:

A female worker who is undergoing IVF treatment has to take time off sick because of its side effects. Her employer treats this as ordinary sickness absence and pays her contractual sick pay that is due to her. Had contractual sick pay been refused, this could amount to sex discrimination.

Of course, after a fertilised embryo has been implanted, a woman is legally pregnant and from that point is protected from unfavourable treatment because of pregnancy, including pregnancy-related sickness. She would also be entitled to time off for ante-natal care.

It is good practice (though not a legal requirement) for an employer to treat sympathetically any request for time off for IVF or other fertility treatment, and consider working out a procedure to cover this situation. This could include allowing women to take annual leave or unpaid leave when receiving treatment and designating a member of staff whom they can inform on a confidential basis that that they are undergoing treatment.

More information

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