There is a column in the New York Times magazine called ‘The Ethicist’. Imagine my surprise when I found the Ethicist giving advice on whether it was ethical to pay a departing employee for untaken holiday. The situation was that a caregiver had been offered a month’s paid holiday per year when she began work for a family. She had done a good job, but had given notice, citing a family emergency. She had been with them for 13 months and only used 2 holiday days. There was a debate in the family as to whether she should be paid for her untaken holiday. The Ethicist concluded that the employee had been promised it, had earned it by working so should receive the benefit. I found this a refreshingly simple approach and very different to the one I see taken in the UK, with arguments about ‘use it or lose it’, contract, and the Working Time Regulations.
HR professionals are constantly asked what a business has to do to stay within the law, and not so often what a business should do to be fair. There are reasons for this, both economic and practical. The law is usually definite (at least on some issues), fairness is a debatable concept and in hard times businesses have to look to the bottom line. But these considerations need to be balanced with protecting the business’ reputation and I can’t help wondering if we’ve become too concerned with the legalities at the expense of acting fairly. You need to know the legal position to be able to advise your business. But you need more than the bare bones of the law to advise your business properly, and some consideration of what is fair can go a long way to preventing problems such as reputational damage, low morale and high employee turnover. These things have the potential to be even more damaging that an employment tribunal claim.
It seems that the family didn’t follow the Ethicist’s advice and didn’t pay the caregiver for her unused leave time. Legal considerations aside, do you think they should have done?
‘This information is believed to be correct as of the date published. It is not a substitute for legal advice and no liability attaches to its use. Specific and personal legal advice should be taken on any individual matter’.
Lucinda Bromfield, Employment Specialist, Bevans Solicitors
Lucinda Bromfield is an employment specialist at Bevans, advising on all aspects of employment law and alternative dispute resolution. Before becoming a solicitor she had experience of working in compliance and HR for large private and public sector organizations. She is a qualified mediator and has a particular interest in the role of effective communication and HR in building sustainable, profitable businesses.