employment lawlegislationmitigationreligion or belief

One of my closest friends, and ongoing victim of my slight obsession with Parkrun, is currently involved in planning events at Liverpool John Moores University’s Christian Union.  Naturally, within recent weeks, this has led to many discussions about the Bible within our shared early morning car journeys to the aftermentioned Parkruns.

Most of the discussions have been quite friendly and, basically, have involved a partial stalemate between an individual who reads the words entirely literally and an individual who tries to judge the reasoning and purpose behind the wording.  Unsurprisingly given my role as Employment Law Solicitor, I’m the latter individual as, every day, I have to interpret Employment Law legislation, case law, policies and Handbooks with an eye on why the rules are phrased as they are (and in the knowledge that sometimes rules can apply wider than they are actually phrased).

Just on this point, and for anyone who is interested in the ‘literal’ v ‘purposive’ approach to reading the Bible (or any other book), the book “The Year of Living Biblically” by A. J. Jacobs follows an agnostic individual who tries to take every single rule in the Bible literally for 1 full calendar year and, naturally, sees it entirely take over his life by forcing him to spend hours per day figuring out the clothing he is permitted to wear, what he can eat, when he can sit on a chair vacated by another and much more.  A fantastic read, particularly given the non-religious author.

Anyway, why is this relevant to Employment Law?  Well, quite simply, there is often a similar debate in relation to Employer Handbooks.  An Employer Handbook (or ‘Company Handbook’) is basically a document containing the rules and policies of the employer in relation to staff.  Some employers take the document entirely as read (i.e. read it literally and without allowing any deviation), some are very lenient with being flexible as to the rules and the majority, as per most people, read straight down the middle (i.e. look to apply what they view as a more ‘common sense’ application to the rules).

Let’s have a look at the various approaches by looking at an entirely fictional ‘Compassionate Leave’ policy.  Our hypothetical (and poorly written) Compassionate Leave policy simply states:

All staff are entitled to paid compassionate leave for select relatives and family members.  Staff will receive specified periods of compassionate leave as follows:

1 day – Grandparents

3 days – Brother, sister, step-brother or step-sister

5 days – Spouse, child or parent

No compassionate leave will be offered for any other relative or family member and, in that case, the staff member would have to make an application for annual leave, which would be subject to the usual annual leave-related rules.”

Literal approach – Now, let’s start by confirming that the above policy is unusually strict and harsh.  Firstly, there is no mention of step-parents, step-children, partners (the policy only covers a ‘spouse’) or grandchildren and, secondly, setting out such restrictive, short time periods is quite uncommon.

We’ll call our hypothetical employee, Duncan.  Duncan’s grandfather has recently passed away.  Duncan is only 19 years old and has lived with his grandfather since being a very young boy (and has practically no relationship with either parent).  Effectively, in Duncan’s eyes, he reasonably regards and describes his recently deceased grandfather as his Dad.

Duncan explains this to his employer over the phone but, because the employer will only read their own policies and rules entirely literally, they refuse to be flexible and class Duncan’s grandfather as a ‘parent’ and, therefore, refuse to award him any more than the 1 day of Compassionate Leave granted for a grandparent.  When Duncan challenges this by stating that he would never claim Compassionate Leave for a parent other than his grandfather because he was the only ‘parent’ in his life, the employer simply responds that ‘rules are rules’.

Purposive approach – In this scenario, the employer is likely to look at the reasoning and purpose behind the rules (i.e. ensuring that staff aren’t taking a week off when a second cousin has passed away and, instead, seeking to ensure that the impact of the bereavement matches the length of the Compassionate Leave).

Due to this, the employer is likely to agree with Duncan that the impact of losing his grandfather is akin to losing a parent and, therefore, award him 5 days’ Compassionate Leave.  In doing so, the employer is also likely to look at the surrounding circumstances, which may include the fact that Duncan is only 19 years old (and still lived with his grandfather) and therefore had a much closer connection to him.

‘Common sense’ approach – This is where the employer will look to consider both sides – both the principle of following the rules and, also, the need to consider mitigating circumstances.  Most employers will judge themselves as following this middle ground approach.

It may be that an employer looking at the bigger picture will judge that the policy provides for a big difference of 4 days’ Compassionate Leave between ‘grandparents’ and ‘parents’ and that, whilst Duncan is closer to his grandfather than is typical and his grandfather was akin to a parent, the wording of the policy needs to be treated as important and require substantial mitigating circumstances to deviate from.

It could be that, in this situation, an employer holds the middle ground of awarding 3 days’ Compassionate Leave to Duncan because this reflects Duncan’s closer relationship with his grandfather without opening the door for future staff members to argue that family members are akin to a ‘parent’ (or ‘sibling’) figure.

Overall, I’m not going to state that any of the above approaches are wrong.  Each has its place and, usually, reflects the consistent mindset of an employer.  Instead, it is simply interesting to note that three hypothetical employers could look at a very short, simple policy (and simple employee scenario) and come out with three completely different outcomes without any malice or ill intentions.  As per my chats with my Parkrunning friend, it all usually simply boils down to interpretation…

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