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Leave: Is it a right or a benefit?

authorIcon By Ketan topicIcon HR

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A prologue

The Cambridge Dictionary defines leave as, ‘time allowed away from work for a holiday or illness’.

‘Allowed’ is the operative word here, as it entails explicit or implicit, permission or authorization. In other words, leave is a provision that lets an employee abstain from his/her workplace for genuine reasons with prior approval of his/her reporting manager.

The genuine reason could be a casual but important personal work, planned activity, a health constraint or an emergency.

Whether leave is a right or a benefit has perpetually been a contentious issue among HR professionals, employers and employees. Nevertheless, let’s first grant ourselves an appreciation of the framework that governs the business of leave.

Various kinds of leave granted

Different statutes, including industry-specific ones, provide for different aspects of leave such as types of leave, eligibility conditions, duration of leave, the number of leaves, lapsable or not, encashable or not, so on and so forth.

Nearly all companies have provisions for casual leave, sick leave, maternity leave, earned/privilege leave, special leave, loss of pay (LOP), compensatory off, etc. Keeping in mind the aspirations of millennials, few companies have even introduced innovative leaves, such as anniversary leave, paternity leave, sabbatical leave, birthday leave, volunteering leave, etc.

The legal framework for leaves

Leave, as an extension of an employment contract, for either permanent or fixed-term employees, is a definitive legal obligation of the employer.

As specified in the legal framework, each leave has a specific purpose. Further, certain leaves, such as privilege leaves, are conditional, accumulative (on a calendar-year basis) and encashable (that is, payment in lieu of leave). On the other hand, certain leaves, such as casual leaves are not-so-conditional, non-accumulative and non-encashable.

Barring unpaid leave and compensatory off, most legally stipulated leaves are on accrual or proportional basis. That is, they’re linked to the number of days an employee has worked during a certain period preceding the leave application in a given calendar year.

So, is it a right or a benefit?

A famous idiom among HR professionals is: “An employee cannot claim leave as a matter of his/her right”.

Leaves emanating from the statutory framework are an entitlement of an employee, contingent upon the employment contract and conditions thereof. This entitlement to leave has three distinct features:

  1. It is conditional.
  2. It is approval-based.
  3. The approval is reversible.

Therefore, leave does NOT qualify as a matter of right in an absolute sense.

Few examples illustrating leave as a conditional right

For instance, if an employee has not fulfilled the laid down conditions and/or does not adhere to informed procedures for a particular leave, the employer is well within his/her right to deny granting that leave. Remember that ‘Right of leave’ does not tantamount to ‘leave as a matter of right’ in the context of employment.

Further, all leaves except those applied in case of accident, sickness and maternity, are cancellable under extenuating circumstances. The employer can recall an employee, who has proceeded on an approved leave if the business situation demands it.

An unjustifiable refusal on the employee’s part and failing to report to work would amount to insubordination. That is, non-compliance with legitimate orders of the employer and may attract suitable action. On the other hand, the statutes clearly express that unless there is no valid reason or justified business requirement, leave applied in accordance with the law and rules framed thereunder, should not be rejected. This is a subtle advocacy of fairness, a very important element of an organization’s culture.

The pivotal argument for leave as a conditional right

The fact that the statutes guide and enable organizations and not employees on what types of leave to be given, whom to be given, when to be given and how to be given is a pivotal argument that helps in clarifying the interpretation of leave as a conditional right.

Let us consider the case of casual leave. The intent of the casual leave is to enable an employee to take time off from his/her duty to meet an unforeseen, urgent or important need. By implication, such requirements obviate the necessity for prior intimation or sanction from the reporting manager. However, this should not be a frequently taken leave. It should not be misconstrued either as a matter of right or allowed as an excuse for absence without notice repeatedly.

Eventually, the conduct of an employee validates whether he/she is utilizing leave for genuine reasons or abusing it. The reporting manager can legitimately refuse to grant casual leave to an erring employee if he/she habitually resorts to it to abstain from duties without adequate notice.

Casual leave doesn’t mean that an employee can leave work or workplace casually!

As we know, immediately after demonetization, many banks’ senior management had resorted to a different approach for leave management, including advising employees internally to minimize leaves for a certain period. Such examples reinforce the point that the sanction of leave fundamentally depends on business requirements.

As per the provisions of the Representation of People Act, 1951, an employee residing outside the constituency, but a voter of the constituency where the election is being held is to be granted leave with pay for casting his/her vote. However, even this grant is again subject to the approval of his/her reporting manager and is not an assured grant.

The bottom-line

Leave is a legal entitlement of an employee, but not a prerogative. It is a conditional right and an inseparable piece of the total employment package.

However, if the company has innovative leaves, such leaves would not qualify as a right, because such leaves have no legal backup and can be modified/ withdrawn whenever the management desires to do so.

Nevertheless, for the HR Manager, what is significant, is to lay down a good leave policy and a clearly communicated how-to-avail-leave procedure in line with applicable statutes, company philosophy and industry/competition norms.

He/she should ensure clear communication to employees, especially when they join the company and/or when there are changes in the leave policy or procedure. Also, vital is the inclusion of suitable clauses in the appointment letter that aptly clarify the point that “leave is not a matter of right”.

At the end of the day, transparency, fairness and employee engagement are the three hallmarks of a healthy approach to leave management policy and practice.

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