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I recently had to leave work to attend my wife at home who had taken ill. Having taken an hour to get her to see our...

I recently had to leave...
I recently had to leave work to attend my wife at home who had taken ill. Having taken an hour to get her to see our GP and collect medication, I returned home and spent the rest of the day working on my laptop, connected to the company servers and available by phone and email. Email traffic and internal sales documentation confirms the extent of my productivity. The company is asserting that I take a half-day of holiday to account for my absence, but won't acknowledge the work that I did while absent. As far as I can ascertain, this is within the terms of the company's HR policy. Would this be normal practice or has my employer deliberately excluded any legal flexibility from it's policy?
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6/8/2014
Ben Jones
Ben Jones, UK Lawyer
Category: UK Employment Law
Satisfied Customers: 50,952
Experience: Qualified Employment Solicitor
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Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. What exactly does the policy say about this?

Customer:

It doesn't refer to this type of absence, but it states that "Time away from work in excess of 3 hours will be deemed as unpaid"

Customer:

Sorry - Hi Ben, and thanks for your response!

Ben Jones :

Thank you. And is the issue here that you want to have the time paid?

Customer:

No - I have been told that I have to forgo a half-day of my holiday allowance. I'm unhappy because the company is not acknowledging that I was working while absent. More generally, I'm not happy that the large amount out-of-hours time that I work is not being recognised in mitigation of a single, short-duration absence. My manager asserts that the policy does not require the company to be flexible and that it is applied in all cases as stated.

Ben Jones :

ok so the policy says the time away will be unpaid but does it say anything about it being treated as part of your holiday allowance?

Customer:

No

Ben Jones :

ok so if there is no specific provision allowing the employer to take such time off from your holiday allowance they would not be able to do so. The employer does have the legal right to force you to take time off from your holidays but to do so they need to give you a minimum notice period, which must be at least twice as long as the leave to be taken. So for example if they wanted you to take a day's holiday at some point, they must give you at least 2 days' notice. They cannot give you retrospective notice, unless they could rely on a specific contractual provision that would allow them to do so, which does not exist here. So whilst they cannot force you to take the time off as holidays, they can still ask you to take it unpaid as long as you meet the conditions in the policy, which state it is as long as the time away is more than 3h

Customer:

Thanks Ben - got it. Could I ask: do companies generally retain some flexibility within their HR policy to factor in an employees performance and attendance record when deciding what action to take in relation to very occasional, short-term absence by that employee?

Ben Jones :

What action are you referring to - disciplinary/performance management?

Customer:

Disciplinary or in requiring that employee to either work additional hours or contribute from their holiday. My issue is that I can't believe a modern HR policy cannot retain the flexibility to take factors such as out-of-hours work or an exemplary attendance and performance record into account!

Ben Jones :

To be honest the employer retains much of the control over how they deal with this - there are certain rules that they may have to adhere to, for example they cannot force you to take the holiday retrospectively without there being a specific policy in place. Similarly it would depend on what the reasons for the absence are and there are other rules that may be applicable, such as there being more flexibility if you were out of work due to a long-term medical condition, or in the event of women due to pregnancy, etc - these are all linked to discrimination laws that would offer more protection. However, if that does not apply, the employer will decide how to treat such performances or absences and can have a rigid policy if they want to

Customer:

Yes, but in your experience, would a hard-line, rigid policy be more prevalent than a policy that allowed for some discretion? I believe that my employer is deliberately taking a hard line and I'm trying to find out whether this is the norm, or unusual in today's labour law environment?

Ben Jones :

there is no right or wrong answer to that - thousands of employers will have thousands of different policies - they are free to have anything they want as long as t complies in general with employment laws. So whether an employer adopts hard-line approach or is more flexible is entirely up to them. It is impossible to say whether generally employers are more flexible or not - this can vary considerably from one employer to the next and from industry to industry. The key is that even if in general they were more flexible would make no difference to your situation - they are still able to be more rigid in their approach if they wanted to, it is their prerogative as the employer

Customer:

OK, so employers can be as rigid or flexible as they wish to be within the law, but it is possible to accommodate some discretion within the scope of an individual HR policy without compromising the rights of the employer to take appropriate action where required?

Ben Jones :

yes correct but the discretion is just that

Customer:

Thanks Ben that's great. My position is that I want to challenge the company on the basis of being inflexible, not on the basis that they are in breach, and I want to argue that being flexible would not undermine their position in terms of being able to take a firm line when that is required. Anyway, thank you for you help!

Ben Jones :

The issue of flexibiity would be most relevant in the context of that specific employer's past practices - so how flexible they have been in the past in similar situations. So comparing them to other employers could be like comparing apples with pears but if you compare that particular employer's own practices then it would be your best argument (if it helps of course)

Customer:

My issue is one of principal (yes, dirty word in law, I know) - they are willing to accept the benefit of effectively free labour provided by dedicated employees (not just me) after hours and beyond the scope of the contract in place, but are unwilling to apply any discretion when processing very rare cases of short-term absence by those employees (I've been there 7 years and this is the first time I've been faced with this). In my view, this amounts to an out-dated and morally deficient attitude to employees, but I accept they may well be within their rights and within the law.

Ben Jones :

principles and morals do not often go hand in hand with the law unfortunately, so what employees may see as wrong from a moral perspective could easily be legal. So it is entirely possible for the employer to have a policy requiring you to work overtime s required even if unpaid, but it does not mean they have to be flexible in return on other matters.

Customer:

Yes I do understand that, but it's not going to stop me from making a stink! For me, it's just about standing up for my own principals. In a previous life, I ran a business and I would never have dreamed of treating my employees in this way. Whether its for moral reasons or just in terms of wanting happy, motivated, productive staff, I don't see the purpose in not allowing some discretion in the action that one takes. Anyway, I could go on.. :0

Ben Jones :

yes of course, you have the right to challenge it, there is no doubt, but the issue is how far you can take it and if you claims are rejected you may have to accept it

Customer:

I think I can leverage a review of the current policy. I plan to put my objections in writing, while acknowledging the validity of the policy as it stands. At the very least, it will provoke some dialogue. I just can't accept this without placing my view on record.

Ben Jones :

it is your right to challenge this if you ant, I just can't offer anything specific in law that would give you a good leverage to force a change unfortunately

Ben Jones
Ben Jones, UK Lawyer
Category: UK Employment Law
Satisfied Customers: 50,952
Experience: Qualified Employment Solicitor
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