I am redrafting some family-friendly policies and naturally wrote "you" on the presumption that the main reader would be the person who wants to take maternity leave (although a manager might also like to read the document, just to understand their part in the process).
Researching other policies, however, I noticed that they always say "the employee", which I find a little colder. Customer service documents, on the other hand, always refer to "you".
Is this a stylistic preference to ensure greater clarity? Or is there a legal reason for writing "the employee"?
The legal verdict
Esther Smith, partner at Thomas Eggar
There is not really a legal answer to this situation – to a large extent, the only thing that you need to be concerned about from a legal perspective is that your policies are correct and comply legally with the relevant statutory provisions. The terminology employed is really a stylistic matter for you.
As long as the content of the policy is sound, and employees that read it are clear about how it affects or applies to them, you should have no issues in using “you” rather than “the employee”.
Esther Smith is a partner in Thomas Eggar‘s Employment Law Unit.
David Ludlow, head of employment law at Barlow Robbins
There is no immediate legal reason for the use of the more personal term “you” as opposed to “the employee” in family-friendly policies – or any other employment policies for that matter.
One sees both terms used in a wide range of contracts of employment and employment policies and rarely does the use of either term cause a court or tribunal difficulty in interpreting the document. However, there can be presentational or “evidential” advantages in using one or the other.
For example, if an employer has a diverse workforce made up of, say, casuals, other types of independent contractor, agency workers and employees, it may be helpful to ensure that policies are tailored to govern the relationship between each type of worker and the “employer” in order to avoid confusion over employment status.
Indeed we are currently dealing with an employment tribunal case, in which an employee was dismissed by a Care Worker Agency with a diverse workforce made up largely of agency workers.
Although its staff handbook is labelled “Care Workers’ Handbook”, variously throughout its 56 pages they are inconsistently addressed as “Care Workers”, “Agency Staff”, “Care Staff”, “Staff”, “Employees” and “You”.
One of the issues in this case is whether the putative employee was dismissed in breach of an allegedly contractual disciplinary procedure. The confusion surrounding the applicability of various policies and procedures in the Handbook to different types of worker means that the situation is not at all clear.
Aspirational or binding?
But the use of the more personal “you” in policies governing certain aspects of the employment relationship such as confidentiality, equal opportunities and standards of behaviour can play well for employers in court and tribunal disputes.
In our experience, it often assists them on a presentational or evidential level to be able to emphasise the personal nature of the duty.
For example, if a contract is obviously tailored to embody terms negotiated between an individual employee and an employer – as is often the case with senior people or specialist staff – and is not a standard “off the peg” one, and there is a dispute over, say, the enforceability of restrictions against unfair competition, the use of the second person can be helpful.
Conversely, from the perspective of an employee seeking to avoid a restriction being enforced, the use of standard, more impersonal terminology can help the argument that the restriction was too wide-ranging and was never intended to apply to, or is unreasonable in the context of, their particular employment.
While most family-friendly employment rights apply only to “employees”, some, like the right to maternity pay, extend to others such as “office holders”, for example, directors who may not be employees.
Therefore, when drafting any family-friendly employment policy, care needs to be taken over the use of particular labels and of language generally. One very important consideration is whether the drafter intends to create a policy that is merely aspirational in nature or is intended to be contractually binding.