Is ‘discretion’ really the word you’re looking for?

Is ‘discretion’ really the word you’re looking for?

We often (too often) come across the word ‘discretion’ in employment policies.  Much as we appreciate that employers want to exercise their discernment, there can be a rather a thin line between one person’s sense of discretion and another person’s feeling that they have been discriminated against.

It’s for this reason that the law makers in this country put parameters around statutory entitlements.  The law doesn’t say “if you have a baby the Company will use its discretion in determining the amount of maternity leave and pay you’ll receive”.  Everyone knows the score, and statutory entitlements are clear and definitive.

When it comes, though, to contractual benefits (i.e. those above and beyond statutory) there is sometimes less clarity and definition.  Indeed, in some companies the employee experience can vary greatly from one individual to another, with line managers bestowing generous concessions to their favourites and bending over backwards to penalise the people that they just don’t like.

Flexibility, give and take, is a good thing.  But not all line managers have the emotional intelligence to be fair and consistent, and the Company may need to put parameters of their own into policy to avoid discrimination risk.  In our experience, paid leave (above and beyond holiday) is an area of considerable contention.   If Employee A, who has exhausted their Company Sick Pay entitlement, phones in sick and the line manager says “oh, don’t worry about it, we’ll give you an extra day’s holiday” then danger is starting to roll along the tracks.  Employee B, who has also exhausted their Company Sick Pay entitlement, phones in the next day but the line manager says, in so many words, “too bad – you’re on Statutory Sick Pay and today will be unpaid.”  Not only is Employee B mightily annoyed but there is a risk, because they were treated differently to Employee A, that they have been discriminated against.

Compassionate leave is an obvious ‘at our discretion’ clause.  But, again, this opens up a discrimination risk and, worse, may fundamentally undermine the psychological contract of employment.  We are pleased that the government is introducing paid bereavement leave in 2020 – in this case, for employees who suffer the loss of a child – and we encourage our clients to broaden the scope of this leave for the benefit of all employees in grief.   At the worst imaginable time in your life the very last thing you need to deal with is the uncertain benefaction or brutality of your line manager. 

If your policies tend to the ‘at our discretion’ or the ‘on a case by case basis’ stop and think about the risks and unintended consequences.  Parameters don’t hem people in; they simply let them know where they stand.

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