Anyone here knowledgeable in employment law (time off for dependants)?

[EspressoJunkie]

My wife has just been informed by her manager that she is to face a disciplinary hearing on Monday regarding her level of absence (11 occasions in the last year which include 2 times leaving work early). All but one of these have been because of poorly children. I've googled about legal rights regarding time off for dependants, and I called ASCA, but I can't see anything that clearly states what her rights are exactly. I know the company are within their rights to do this, and I understand that any HR department has to follow their own regulations, but surely there's a reasonable expectation that this should have been brought up directly by her manager at some point before the disciplinary procedure was initiated?

She's not going to loose her job. but understandably we're both angry that it's been taken straight to this level. She has followed procedure for each time she has been off, and is a model employee who has been with the company 7 years.

Does anyone here have any advice or knowledge about the best way for her to defend herself in the hearing?

 

[viv1969]

Company policy regarding parental leave and disciplinary procedures will be specified in her contract of employment.
If she has correctly followed procedure on each occasion then it could just be that this "disciplinary hearing" is not more than an informal chat re. expectations on both sides.
That said, she does have the undisputable right to not go to said meeting alone. She is entitled to be accompanied by a colleague or a union rep.

 

[Gremlin]

Don't know if this helps https://www.gov.uk/time-off-for-dependants

As Ruth has said, much depends on the employer, mine is pretty good about such things and we have had
people take time off for their kids, how it's dealt with depends on the individual circumstances
Sometimes it is taken off the annual leave allowance or unpaid

 

[EspressoJunkie]

Thanks for the replies. I have a feeling that it's to make an example so people don't see ill kids as an easy excuse for time off, but I think it's frustrating when they pick on someone who actually works hard at their job.

 

[Gremlin]

Don't know how big the firm is that your wife works for, but we were told recently that to the higher ups we are just a number, all they
see is the computer read outs, they have no idea of how dedicated hard working people are.
So when things don't shape up they don't take into account the good bits that never show on these records

 

[srichards]

Is she in a union?

What does her contract say about these type of absence?

Does she deal with all the child problems or do you do some as well? It seems wise to split them between you if you can. If you already do then you need to tell the kids to be more careful/not get ill

 

[EspressoJunkie]

She generally deals with them, I make more money, and she doesn't drive so it makes more sense for her to stay off.

We don't have a union, never saw the need before. I realise that the outcome is probably already decided, but its just a matter of not going down without a fight.

I work for the same company so I could go in with her, but I don't trust myself to keep my head, so I probably won't as that won't do either of us any good!

 

[srichards]

It might be worth having an alternative to both of you to mention so that they can see the issue has been addressed already.

If you've kept records of previous absences then it's more ammunition against them too if its just this year there have been problems.

 

[viv1969]

She generally deals with them, I make more money, and she doesn't drive so it makes more sense for her to stay off.

We don't have a union, never saw the need before. I realise that the outcome is probably already decided, but its just a matter of not going down without a fight.

I work for the same company so I could go in with her, but I don't trust myself to keep my head, so I probably won't as that won't do either of us any good!

Definitely pick another colleague to accompany her.

 

[ghoti]

I honestly wouldn't worry about this unduly.
In a lot of workplaces these things are simply a formality that exist to absolve the employer of blame should the employee ever take them to task for working conditions making them ill.
They'll likely ask if there's anything your wife would like brought up with occupational health. Basically so she's on the record as saying "no". I doubt anyone cares a great deal beyond that. Depending on the workplace and your wife's relationship with management she may even find that it doesn't amount to more than a 30 second informal chat where she signs a bit of paper saying she has no need for a consultation with occupational health. Or they may be a bit more formal about it. Either way, it amounts to the same thing, i.e. nothing to worry about

 

[Blank_Canvas]

It might be better to engage with occupational health that way she is seen to be taking it seriously. Whether she she does or not is another matter. Refusal to engage or sign a piece of paper may play into the managers hand at a later date. I don't know the definitive answer but I would seek advice.

 

[Steep]

For future reference, join the union, your problem would have been much simpler to deal with had she been a union member.

This is a pdf that gives some good info on procedures and rights

Facing disciplinary action: a guide for employees and their representatives (Edition 1, April 2010) Practical guide on preparing to face disciplinary hearings. For generalist advisers or advisers new to employment law and for their clients.
http://www.londonlawcentre.org.uk/pdfs/CLLC Disciplinary-3.pdf

 

[big soft moose]

She has the right to unpaid time off to deal with emergencies relating to the care of dependents http://www.adviceguide.org.uk/england/your_money/employment_index_ew/parental_rights_at_work.htm

that said if they are dealing with it through disciplinary this could indicate that they don't believe that 11 times in 12 months was genuine emergencies (it does sound like a bit many - unless you either have lots of kids or one with a pronounced health condition)

she also has the right to ask for flexible working if she regular needs to be off - due to example for to a chronically ill child - do note though that this is only the right to ask , they have to consider it seriously , but they can decline if they have a good reason.

TBH I can't see any reason for occupational health to get involved , if she isn't claiming that she was ill herself on the 11 occasions

 

[EspressoJunkie]

Thanks for the replies.

We have 3 kids 5 and under so sickness can be quite frequent, to be fair 5 of the occasions were all the youngest. She usually takes the time off because I make more, and also she can't drive, so it makes more sense for me to work.

I'm pretty sure she'll get a warning of some sort, I just want to be able to hit them with the legal stuff so they know she's not a pushover!

 

[big soft moose]

if its justified sickness they can't issue a warning because she has a legal entitlement to the time . Problem is proving the sickness if you don't have a doctors record (and lets face it who calls the doctor everytime their kids are sick)

 

[viv1969]

Incorrect. They can issue a verbal or written warning.
What they can't do is take punitive action such as suspension, demotion or loss of holiday entitlement.
Was she paid during these absenses? If she was (and her employer is under no obligation to pay her for them btw), she could agree that future time off due to kids be unpaid, just to placate them them. The offer alone might do the trick.

 

[POAH]

the only thing they can do is sack get because she is unable to do her job but that would mean a significant time off though the year. afaik they really can't do anything if she has taken emergency leave as it's a legal right for someone who has a dependant. if they could do it my work would have called me in ages ago lol

this is unpaid leave, the employer doesn't have to pay you for emergency leave.

if you didn't follow procedure then they could pull you up for that which happened to me once.

 

[srichards]

Fortunately it is considered unfair dismissal automatically if someone is got rid of if they have time off for dealing with dependant's sudden problems.

Section 57A(1) of the Employment Rights Act 1996 entitles an employee to take a reasonable amount of time off work in order to take action which is necessary for dependants, for example if they are ill or injured or if there is a disruption in the care arrangements made for them. It is automatically unfair dismissal to dismiss an employee for seeking to exercise his or her statutory right to take unpaid time off work in these circumstances.

 

[viv1969]

It also very much depends on the circumstances of the time off.
If time off was taken because the child had been taken suddenly ill, that's fine; but if it's apparent that the child may be ill for a few days (and we're talking normal run of the mill childhood illnesses here), then the employer has the right to expect the employee to make suitable childcare arrangements and return to work. Also, they don't have to be understanding of a planned medical appointment, for example. In both those cases they can ask you to use part of your annual leave allowance.
There are no limits laid down as to what is a reasonable amount of times that it's acceptable to be off in this way, and I suspect they just want to have a chat to her about it.

 

[Swanseajack]

Fortunately it is considered unfair dismissal automatically if someone is got rid of if they have time off for dealing with dependant's sudden problems.

Section 57A(1) of the Employment Rights Act 1996 entitles an employee to take a reasonable amount of time off work in order to take action which is necessary for dependants, for example if they are ill or injured or if there is a disruption in the care arrangements made for them. It is automatically unfair dismissal to dismiss an employee for seeking to exercise his or her statutory right to take unpaid time off work in these circumstances.

The problem with this, what is reasonable amount of time, Is eleven too much??? It would be upto the tribunal judge if you went that way (dismissed) and then depending on case law.

The company are probably just trying to find out whats going on with the children, and may ask are there alternatives for the childcare when ill, e.g. grandparents, other family members etc.

Also, as its been mentioned above in other posts, because it's unpaid leave doesn't make it right to have time off willy nilly as some people would abuse it (not saying in this case). I have known people to use time of for dependants for 16 - 17 year olds in higher education for things like a cold, upset stomach etc.

You have to understand if people are not in work it may mean the company missing deadlines, orders etc and putting the company in jeopardy. In my last employed position, the company would talk to you after two sicknesses, verbal after three, written @ 4 etc. This would be done in a rolling year. This was a large manufacturing company where a lot of employees where taking the mick and the company really tightened up on things like these.

 

[Swanseajack]

Also, further to my above post.

The HR department should be there to advise employee and employer, it was the same for me as the Health & Safety Officer. In larger companies the next in line should be carrying out disciplinary action, so you have a means of appeal to senior management. HR would only be involved in Gross Misconduct / Possible Sacking cases. This was the way my old employer worked and was common with other similiar size employers in my area.

I lost my job due to the poor attendance I had, although I was made redundant., which just was a means of the company getting around the system. My worsening disabilities has resulted me giving up work altogether now.

 

[big soft moose]

It does seem odd that they are doing a disciplinary without having an investigation first though

the way we'd work it would be line manager starts a formal investigation - meeting with manager, HR, employee (plus rep if they wish) - then investigate, then disciplinary meeting if appropriate

 

[srichards]

If employers don't like parents taking time off to deal with ill children they need to either a) stop employing parents or b) make adequate business arrangements so that their business doesn't fall to pieces every time an employee goes home a few hours early. They're not following sensible planning practices. There should always be contingency plans in place for the absence of any critical employees at critical times.

 

[Swanseajack]

It depends on what business you are running. I worked in complex / technical manufacturing 24/7 & 365, where every thing was operated on lean principles and anybody in manufacturing was a critical employee.

If people didnt attend work and you couldn't get somebody in on overtime it usually ment that a machine would be shut down as you didn't have the spare manpower. The company didn't feel it was right to operate on "What If" and rather have spare manpower, they took the consequences of a machine being down, it wouldn't mean the business fell to pieces, but it would have a knock on effect.

I suppose all business operations will have a different outlook to these matters.

 

[Gremlin]

If employers don't like parents taking time off to deal with ill children they need to either a) stop employing parents or b) make adequate business arrangements so that their business doesn't fall to pieces every time an employee goes home a few hours early. They're not following sensible planning practices. There should always be contingency plans in place for the absence of any critical employees at critical times.

That may sound good on paper but in reality no business can afford to have people sitting around doing nothing in case someone goes home !
We are currently cutting back excess staff and it means that everytime some goes sick the others have to pick up their workload, it can't just
be left waiting for the employee to return.

 

[big soft moose]

Indeed - i couldn't see police/fire/ambulance or the military just letting someone knock off early because kids are sick for example

If employers don't like parents taking time off to deal with ill children they need to either a) stop employing parents or b) make adequate business arrangements so that their business doesn't fall to pieces every time an employee goes home a few hours early. They're not following sensible planning practices. There should always be contingency plans in place for the absence of any critical employees at critical times.

the flip side of that (given that its illegal for an employer to have a no parents policy) is if parents want to work they have a duty to their employer to make contingency arrangements for when their kids are sick/off school/teachers strike etc , so that emergency leave is only used in an absolute emergency.

As a manager i'm reasonably relaxed about team members taking some flexi when they need it - parents or not, but i expect that they'll make it up and their performance objectives won't suffer as a result ... if someone wants emergency leave intead of flexi i'll let them take it unpaid (or indeed as paid compassionate leave if the circumstance warrants) in emergencies... but in my view emergencies are by definition exceptional circumstances and i wouldn't expect them to occur repeatedly.

That said if one of my team was off on emergency duties 11 times in a year my first thought wouldnt be disciplinary - the first step would be bto have a chat about it with them, and indicate that someting that happens that often isnt really something that can't be planned for... i'd also look at how we coukld help them , for example would they like to vary their contract hours, or timings, would they like to have some built in flexi agreed, or some homeworking , and so forth. It would only become disciplinary if i thought they were skiving or taking the p*** .. and at that time the first step would be to discuss it with them informally and indicate if performance didnt improve we'd be looking at formal measures

 

[viv1969]

That said if one of my team was off on emergency duties 11 times in a year my first thought wouldnt be disciplinary - the first step would be bto have a chat about it with them, and indicate that someting that happens that often isnt really something that can't be planned for.......

The OP states that all but 1 absence was as the result of a poorly child.
Can't plan for that.

 

[Cobra]

I'm gonna play bad cop in this,
and infer no reference to anyone posting in this thread, living, dead, or un-dead,
as I don't know anyone's personal circumstances.

But when (jointly) raising my two, if either was sick / needed "special attention"
for what ever reason, one of us would take holiday, or un-paid leave, to deal with the situation at the time.

To me it just seems that employee's these days, seem to think that the employer has some form of obligation
in also raising the the employee's off spring.

Sadly I saw this starting to come to fruition over 20 years ago,
Now it seems to be the norm.

 

[mickledore]

We only have the OP's version of events. Not wishing to cast aspersions, but there are always two sides to every story.

 

[Gremlin]

That said if one of my team was off on emergency duties 11 times in a year my first thought wouldnt be disciplinary - the first step would be bto have a chat about it with them, and indicate that someting that happens that often isnt really something that can't be planned for... i'd also look at how we coukld help them , for example would they like to vary their contract hours, or timings, would they like to have some built in flexi agreed, or some homeworking , and so forth. It would only become disciplinary if i thought they were skiving or taking the p*** .. and at that time the first step would be to discuss it with them informally and indicate if performance didnt improve we'd be looking at formal measures

This is going to be difficult, kids aren't sick to a timetable, and thereby lies a big problem, if you have allowed others holidays etc. and then
someone has to take time off that leaves you short staffed to do the work.
No matter how flexi the employer is prepared to be, you can't plan ahead for when a child is going to be sick, or in the case of one
of my colleagues, the child minder

 

[ghoti]

It does seem odd that they are doing a disciplinary without having an investigation first though

That's why I doubt it's anything to worry about. Unless there's something we're not being told.

Is it actually a "disciplinary" or have they been called into a meeting about absence and they've assumed this is a "disciplinary". In my experience, after a certain amount of absences an "is everything okay" meeting is triggered. Not a disciplinary, just partly to make sure for the record that the absences are nothing to do with the job (physically or psychologically) and partly so the employer can get a head start on a strategy if there's going to be a continuing problem.

If it's the first time management have raised it it's likely to be an innocuous formality. Otherwise the employers are hugely unreasonable.

 

[Serendipitous Sid]

Forgive me for asking, but I genuinely don't understand this. Unless I misunderstood an earlier post, the OP has three children under the age of 5 and both he and his wife work full time? How does that work? Who looks after the kids?

 

[big soft moose]

I presume he uses a child minding service/playschool/creche, but the kids can't go if they are ill ... its reasonably common. (also wifey may not be full time - I don't think he actually says anywhere what her stipulated hours are)

 

[viv1969]

Forgive me for asking, but I genuinely don't understand this. Unless I misunderstood an earlier post, the OP has three children under the age of 5 and both he and his wife work full time? How does that work? Who looks after the kids?

What're you...social services?

 

[Blank_Canvas]

The absence of evidence is no evidence of absence.

 

[Serendipitous Sid]

What're you...social services?

Fear not dear lady, I'm anything but where that lot are concerned. Nope, I'm just an old git who is often mystified by how some folks organise their lives, hence the question

Actually, while I'm at it, can somebody please explain "occupational health" to me? When I stopped working for other folk and started working for myself, "HR" was still called "Personnel" and this other thing hadn't been invented, so I'm puzzled about that too!

 

[EspressoJunkie]

Forgive me for asking, but I genuinely don't understand this. Unless I misunderstood an earlier post, the OP has three children under the age of 5 and both he and his wife work full time? How does that work? Who looks after the kids?

She works 3 days a week, I work full time. The kids are in a day nursery on those 3 days.

 

[EspressoJunkie]

That's why I doubt it's anything to worry about. Unless there's something we're not being told.

Is it actually a "disciplinary" or have they been called into a meeting about absence and they've assumed this is a "disciplinary". In my experience, after a certain amount of absences an "is everything okay" meeting is triggered. Not a disciplinary, just partly to make sure for the record that the absences are nothing to do with the job (physically or psychologically) and partly so the employer can get a head start on a strategy if there's going to be a continuing problem.

If it's the first time management have raised it it's likely to be an innocuous formality. Otherwise the employers are hugely unreasonable.

Its actually a formal disciplinary. I've spoken to a union ( who were very helpful even though I'm not a member) and also a legal advice line, who both say that although work are within their rights to do this, it is as you say extremely unreasonable to take it to that level directly.

Also to those who were wondering (and I do understand why) there genuinely isn't anything else to the situation, its exactly as I've stated.

I've given my fair share of warnings etc in my time, and I know when they're justified and when they're not.
There is a new line manager in place who I feel may be trying to make his mark on the team.

If it was me I would kick up stink, fight it, and then appeal, but that's not my wife's style, and I think they know that.

 

[viv1969]

Again...what are the disciplinary prcedures laid down in her contract of employment?

 

[big soft moose]

The OP states that all but 1 absence was as the result of a poorly child.
Can't plan for that.

yes you can - you make a contingency plan of what you'll do if a child is sick - such as relatives, bringing in a 1-1 child minder , having an arrangement to work from home at short notice, taking the time as flexitime/toil and making it up etc point being that its your problem not that of your employer or your colleagues who have to cover work that you don't do (using 'you' in a generic sense), Something that occurs with regularity does not fall into any reasonable definition of 'unexpected'

Its actually a formal disciplinary. I've spoken to a union ( who were very helpful even though I'm not a member) and also a legal advice line, who both say that although work are within their rights to do this,.

do you know what stage of the disciplinary it is ? - If its the first she's heard of it I'd expect it to be the investigative meeting rather than the hearing itself