Alison Norris, an HR expert with Employment Law Specialists & Health and Safety Advisors mhl Support, suggests a remedy – and indulges in a little bird watching…

In September we had (yet) another decision from Europe that shook us to the core. The ruling related to one Francesco Pereda, a council worker from Madrid, and was made by the European Court of Justice. Signor Pereda was injured before he was due to go on holiday and he asked his employer if he could take his break some other time. His employer refused.

The ECJ judged that the employer was wrong: ergo, employees who are ill immediately before or during a holiday should be allowed to take that holiday later in the year, or carry it forward into the next year if necessary.
Some of us in HR will have heaved a mournful sigh at the thought of having to reviewing absence and sick pay policies yet again: we see compliance as just another chore. Some of us, however, seize every development in employment law as an opportunity. Others are likely to bury their heads in the sand and do nothing.

Which camp are you in? Yes, it’s got something to do with the mindset of the individual, but it has a lot more to do with the culture of the company. Let’s explore three species of employer, birds of a feather that flock together.

The lesser-spotted high trust employer
Let’s say, for example, that you pride yourself on being a ‘best practice employer’. You enjoy good communication with staff, you have a single-minded focus on employee welfare, and you always consider the issues your employees face sympathetically. All is happy in the nest.

If an employee was to fall ill prior to a pre-booked holiday and asked to change arrangements, you’d probably accept their request without so much as a by-your-leave. Should an employee text you from a tropical isle to complain that a virulent tummy bug has wrecked their idyllic break, you’d sadly sympathise and agree that they can take the time off again later in the year.

The chances are that as a best practice employer, you’ve built a high trust working environment. Perish the thought that one of your employees would feign illness for a duvet day. So, when the media frenzy erupted in September, denouncing as ‘ludicrous’ the right of employees to a repeat holiday if they fell ill, you seized the opportunity to celebrate. Why? Because, once again, employment law had taken a big step forward; because you knew that your competitors were about to be forced to do what you’ve always done…

The common or garden commercially aligned employer
The majority of us, however, are less altruistically aligned. We believe that the psychological contract between employer and employee is a very fragile thing. We have learnt through cruel experience that if one gives in too easily to employees, their expectations inflate and an imbalance ensues.

If an employee falls ill as holidays approach and asks to change their dates, we consider the operational requirements of our organisation and agree only if it suits; and when an employee texts from Mauritius with news of his or her gastroenteritis, we sympathise. Maybe. But that’s all. It’s about the survival of the fittest; the pecking order.

The speckled high risk employer
The last flock consists of those cuckoos amongst us that enjoy the gamble inherent in business. The bigger the risk, the better we like it, so when the law changes yet again, it is an opportunity to weigh up the odds: the cost of amending rules and procedures to fall in line with the letter of the law, versus the risk of a Tribunal claim that might seriously clip our wings. Faites vos jeux, Mesdames et Messieurs.

It may be that the outcome of this long shot is to change the holiday rules by adding: ‘should you fall sick prior to, or during a pre-booked annual holiday, there is no entitlement to take those holidays on another occasion unless specific permission is obtained.’ How wonderfully non-committal is that? It doesn’t say that the employee can take holiday again if they fall sick, but neither does it say that he or she employee can’t. It allows the employer to assess each case individually, so that a decision can be based on its relative merits… Let’s face it: this is the game plan of a great tit, not a legal eagle.

A golden opportunity
In my view, the interest in holiday and sick leave legislation that has been generated by Pereda is a golden opportunity for us to remind employees of both our sickness and reporting procedures, and to reiterate the fact that disciplinary action may be taken against employees who fail to follow those procedures.

The consequences of such action need not be a one-way ticket to a low trust environment. The alternative is worse: with poor procedures, or no procedures in force, the eyes of our workforces will hold us in an unflinching gaze as they search for signs of victimisation or favouritism.

Compliance is by far the safest route, but remember: far from being a chore, rich commercial rewards await employers who understand their obligations and work within the framework of the law.

Unfortunately, finding time to analyse the slings and arrows of outrageous employment law, while keeping up with the day job of HR management, is a challenge too far for most of us. The best advice I can offer is that you build a good relationship with an employment law expert whose job it is to keep you informed, and remember: the best ones will tell you how the law can be interpreted, not just what it says.
 
Contact Alison at mhl Support Ltd on 08453 100 600