Since most of those going through a divorce will be of working age, it is highly likely that it will impact, at least to some extent, on their employment. Divorce sets in train a whole host of challenging situations which usually have to be dealt with at the same time. This could include dealing with the emotional anxiety of a relationship breaking down, having to establish new arrangements for shared care with any children and potentially having increased responsibility for childcare, losing support networks, and the worsening of both immediate and longer-term financial circumstances. In this article, we look at the ways in which divorce can affect employees in the workplace and the law surrounding it.
How might divorce affect me in the workplace?
Most people going through a divorce will feel utterly consumed by the process and face a raft of practical changes. In a 2023 survey, 95% of respondents reported that their mental health suffered when divorcing. This is not just a personal problem for the employee, because it increases the risk of other workplace issues arising:
- You may find it hard to concentrate on work and get through your workload as you have in the past. There may also be a dip in the quality of work you produce
- The increased stress could manifest itself in other ways; perhaps you become more short-tempered or abrupt than usual, or become tearful and easily upset. If you work together with your spouse, the risk of arguments at work is raised.
- Your level of sickness absence may increase, where you have had to take either sick leave or unpaid leave to deal with the emotional fallout, court hearings, or meetings with your solicitor.
Many organisations go beyond the legal requirement of offering maternity, paternity, adoption and parental leave. Some offer days off in the form of compassionate leave to deal with bereavement or other family issues. Divorce and separation leave is something an increasing number of companies are considering, with Asda, Tesco, NatWest, Metro Bank, Unilever, PwC and Vodafone among the household names changing their HR policies to offer support to their employees. Perhaps it is worth exploring if your employer has similar policies.
Am I entitled to take time off work for my divorce?
Whilst there are currently no statutory provisions entitling an employee to take time off work to deal with their divorce, there may be alternatives available, such as:
- Annual leave entitlement or unpaid compassionate leave
- Where children are involved, you may be able to take parental leave. Employees are entitled to 18 weeks’ leave for each child and adopted child up to their 18th However, your employer may have set requirements as to how this is taken and who gets this leave. For example, you may be required to have worked for your employer for at least a year, or leave must be taken in blocks of one week at a time rather than sporadic days here and there.
- All employees have a legal right to request flexible working from their employer. Although the employer doesn’t have to agree, where it can be accommodated, it is an excellent way to assist a divorcing employee. For example, this may help with new obligations for the school run, where different working hours may more easily be agreeable.
- Depending on your employer, its policies and your contract, you may be able to negotiate other paid or unpaid leave to cover necessary absences.
An employer should consider requests carefully and in a non-discriminatory way, but you should bear in mind that they can refuse on the basis that the business will be adversely affected by the change.
Can my employer sack me for taking time off work to deal with my divorce?
Whilst going through a divorce is not a protected characteristic, dismissal or detrimental treatment of an employee because of their change in marital status, might lead to claims of unfair dismissal or discrimination.
In some circumstances, you may be underperforming as a result of what you are experiencing. Most employers will work with you to resolve the issues, and may impose a performance plan to help assist. If this happens, the plan must be fair and identify the areas in which you need to improve, provide a time for improvement, and then objectively review whether these have been met. The employer must only judge the employee in the same way as other employees are judged. This means there should be no greater or different scrutiny for those going through a divorce or separation.
There may be situations where an employee has asked for assistance and all possibilities have been refused. There may also be scenarios where the workplace becomes so difficult the employee needs to constructively dismiss themselves by resigning. This must be considered carefully before taking action and an employee should take legal advice, as this is often a complex situation.
Care should be taken if you are planning to deal with your divorce, such as attending hearings or legal appointments, by “pulling a sickie”. You can open yourself up to dismissal if you are found out because lying to an employer is deemed “misconduct”. In a 2018 case, Mr Collins told his employer he was sick with a stomach ache and needed to go home as his pregnant partner was also unwell. However, three hours later, he was pictured on social media enjoying a drink at Gatwick Airport prior to boarding a flight bound for Cyprus.
He was sacked for gross misconduct but brought an employment tribunal claim for unfair dismissal, claiming he was owed overtime and was merely taking his time back. The tribunal concluded that Mr Collins was dismissed for lying to his employer and there was every reason to believe that in order to arrive at the airport on time for his flight; he had pulled a sickie to leave work early.
Although pretending to be sick when you are not might seem like a relatively minor offence, the truth is that it amounts to dishonesty and misrepresentation, which equates to misconduct and is a fair reason for dismissal.
That said, employers must also follow a fair process when dismissing a member of staff, but providing this is adhered to, as in the case of Mr Collins, there should be no grounds for unfair dismissal.
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