Legal advice. Dismissed for dependent care?

Chat Forum

[closed]

Legal advice. Dismissed for dependent care?

52 posts & 26 voices | Started 1 year ago by lesoxdh | Latest reply from nikeboy

Tags:

No tags yet.

Pages: 12 Next »

lesoxdh - Member

I have been dismissed from work yesterday, due to having 5 days off for dependent care as my partner had flu and was not able to look after our now 7 month old boy. To cut a long story short I was placed on a final written warning last March due to winter illness. At that time I found out my gran had cancer which I had some time of to visit as what her doctors advised. Then in the year I needed some time off as my partner had complications with the pregnancy. In October I had flu and need sometime of as I was unfit for work. I was then called into a meeting and had the final written warning reissued due to that I sickness and having 7 days of dependent care which was two days over what the company deems reasonable. From that date I have not been sick or off from work until the time off to look after my son. I am now awaiting the documents to appeal the dismissal.

Now the question for stw peeps. What do you think and what can you advise for me to do?

Posted 1 year ago #
xiphon - Member

Go an see CAB.

You may have grounds for unfair dismissal, but don't hold me to this.

Seek legal advice.

Posted 1 year ago #
TandemJeremy - Member

Were you in a union?

On the surface it would seem they have attempted to go thru the right channels so it might be difficult. You need real advice on this - CAB or local law centre.

there is some legal stuff about entitlements to carers leave. It appears to rest on a reasonableness test. fixed time limits are not reasonable in my opinion It would also depend to a great eextent on your role in the workplace IE can you be easily replaced / your work covered.
http://www.tuc.org.uk/tuc/rights_timeoff.cfm#Time_off_for_dependants

Posted 1 year ago #
TheLittlestHobo - Member

Wouldnt childcare have been an easier option than 7 days off when you already knew it was going to be an issue (Past warnings).

Dont wish you to lose your job over it, but at what point will you 'make other arrangements' that dont impact on your company

Posted 1 year ago #
xiphon - Member

FWIW I've taken time off - unpaid - when mrs xiphon's been very ill.

Posted 1 year ago #
TandemJeremy - Member

Adding together the two issues - your time off sick for you and the time you took of as carers leave looks wrong to me.

The visit to your gran was not carers leave however unless she was dependent on you. I doubt the disciplinary for that was unreasonable.

Posted 1 year ago #
poisonspider - Member

You are entitled to 13weeks unpaid leave if you have a child under 5 (under 18 if disabled). If you invoke this right for all the instances where you were looking after your child you may be able to justify a number of the absences, which in effect will reduce the overall absence they can complain about.

However, there is a strict process for requesting this unpaid leave therefore I suspect you may struggle to do it retrospectively.

With regard to seeing your sick Gran and looking after your wife who has flu, you're on thin ice I'm afraid. I would have expected my staff to cover this with holiday.

Posted 1 year ago #
firestarter - Member

good luck mate hope you get sorted.

i got a written warning for taking two days emergency carers leave when my wifes appendix burst a few days after childbirth and i had the newborn a one year old and a 8 and 9 year old to look after at the time . apparently my situation wasnt deemed to be good enough and i should have called my parents ;-(

this was the first time i had taken off since getting my certificate of thanks for not taking a day off for the last 12 months four months previously. (investors in people (this is the award they won last year) my ar5e )

Posted 1 year ago #
lesoxdh - Member

Just to mention. We have arrangement for child care if something happened (mrs leosxdh mother). But she was on holiday in the states at the time and there was no other option for me to be the legal carer

Posted 1 year ago #
Junkyard - Member

as far as I am aware you cannot be given written warnings for being ill - it is not an offence being ill - you should have sought advice then
As for unpaid leave re children I am fairly sure you have an entitlement to this till age 5 - will check law stuff when I get home- they should/could have just refused to pay you. Not sure there is any case law on this yet re whether they can sack you
http://www.direct.gov.uk/en/Parents/Moneyandworkentitlements/WorkAndFamilies/Parentalleaveandflexibleworking/DG_10029416
here you go

See CAB

Posted 1 year ago #
TandemJeremy - Member

poisonspider - Member

You are entitled to 13weeks unpaid leave if you have a child under 5 (under 18 if disabled).

Reference? I don't believe it is absolute right nor is there any time limit. You might have something in your contract that gives you greater than the legal rights

Check the TUC link I gave above

Edit - just looked at junkyards link - parental leave and carers leave are not the same thing hence theconfusion - I was looking at carers leave

Posted 1 year ago #
TheLittlestHobo - Member

Sounds to me like they were a bit peeved with your past record, Gran & Illness which they gave you the warning for. Now you have had a legitimate situation where they could have cut you some slack there isnt any available to you.

A lot of companies are doing this atm. Its much cheaper to get rid of someone for a legitimate reason that the employee has handed to them on a plate, than it is to go through any redundancy process.

Not sure about the ins and outs of the 13wks unpaid leave thing so hope that this may give you something to fire back at them.

Posted 1 year ago #
xiphon - Member

You being sick is very very different to a 3rd party being sick.

Sick Gran - that's holiday, I'm afraid (although it won't feel like a holiday!)

Sick dependant - again, either holiday (perhaps agree short-notice annual leave - we call it 'emergency holiday' ).

Fortunately my Boss' wife also has gluten intolerance... so knows when they get ill, they *really* get ill. I have taken unpaid leave to look after her, by prior agreement.

Look on the bright side - now you're unemployed, there's plenty of time to go riding!

(Every cloud has a silver lining and all that....)

Posted 1 year ago #
bensales - Member

It's called Parental Leave and it's a legal right for all parents with children under the age of 5 (or 18 if disabled). You do need to have a year's continuous service at your place of work.

There are some restrictions around claiming it though. It's unpaid, and you must take a whole working week at a time. And I think give at least a months notice.

Posted 1 year ago #
TheLittlestHobo - Member

Just as a matter of interest, how long were you off work for your illness and for your gran?

Posted 1 year ago #
TandemJeremy - Member

If there's a genuine emergency and you need to take time off at short notice:

* your employer may let you take emergency leave
* you may have the right to take time off to arrange for care

All employees have a right to take a reasonable amount of unpaid time off to deal with certain emergencies involving people they care for. This is known as time off for dependants, and applies regardless of how long you have been working for your employer or whether you have child or adult care responsibilities.

http://www.direct.gov.uk/en/Parents/Moneyandworkentitlements/WorkAndFamilies/Parentalleaveandflexibleworking/DG_10029416

You are allowed 'reasonable' time off to deal with the emergency and make any arrangements that are needed. There's no set amount of time allowed to deal with an unexpected event involving a dependant - it will vary depending on what the event is but for most cases one or two days should be sufficient to deal with the problem.

For example, if your child falls ill you can take enough time off to deal with their initial needs, such as taking them to the doctor and arranging for their care. However, you will need to make other arrangements if you want to stay off work longer to care for them yourself.

http://www.direct.gov.uk/en/Employment/Employees/Timeoffandholidays/DG_10026555

Posted 1 year ago #
xiphon - Member

Perhaps that Parental Leave thing is to do with kids having hospital operations / long term illness?

You can't really plan your child to be sick in one month...

Posted 1 year ago #
TandemJeremy - Member

Parental leave and dependants leave are not the same thing - two different bits of regulations - see the links above

Posted 1 year ago #
Zulu-Eleven - Member

There's two different provisions being talked about here

parental leave - which is a longer term issue, and has to be planned in advance and taken in one week blocks

and emergency leave for dependent care, which can only be used to get over an unexpected emergency, such as illness or the breakdown in normal care plans - this would be the one for this case, and the only restriction on amount of time is that its "reasonable" - I'd say that 5 days unpaid, last occasion a year ago, due to illness when alternative care was unavailable due to holiday and normally would have been in place would not be unreasonable, and that your employer is on VERY dodgy ground.

I believe the rule in a case of dismissal for emergency leave is that its automatically unfair unless the employer can justify it - so the onus of proof is on them to show your use was unreasonable.

Fairly good chance of winning this one I reckon mate! Get the tribunal application written out!

Posted 1 year ago #
lesoxdh - Member

How the days add up.

3 days for grandmother
4 days for the pregnancy complications
4 days sick in October (all at 1 time)
5 days looking after my son (all at 1 time)

That is over the last 12 months and was with the company for over 3 and half years.

Posted 1 year ago #
TandemJeremy - Member

I would be a lot less optimistic than Zulu on this. I think it would be hard to justify 5 days as reasonable - given that the guidance suggests

There's no set amount of time allowed to deal with an unexpected event involving a dependant - it will vary depending on what the event is but for most cases one or two days should be sufficient to deal with the problem.

For example, if your child falls ill you can take enough time off to deal with their initial needs, such as taking them to the doctor and arranging for their care. However, you will need to make other arrangements if you want to stay off work longer to care for them yourself.

Certainly well worth looking into and getting real advice tho. When I was a union rep I would have fought it but wouldn't have been confident of winning

Posted 1 year ago #
TheLittlestHobo - Member

Zulu's post sounds good to me

Posted 1 year ago #
TheLittlestHobo - Member

Why does law always seem to come down to what one man/woman deems is reasonable?

Posted 1 year ago #
allthepies - Member

Did you use up some of your holiday quota for any of the periods off work ? Some of them would fall into that camp IMO and I can see an employer coming to the conclusion that you were a PITA if you took them as days off outside of your holiday allowance.

Sorry - but that's how it looks (to me).

Posted 1 year ago #
ourmaninthenorth - Member

Lawyer time.

Find a proper emplyment lawyer and get proper advice. This is technical and will depend on a whole host of facts and factors.

Helpful though the people here are, you need the advice of an expert.

Good luck.

Posted 1 year ago #
ourmaninthenorth - Member

.

Posted 1 year ago #
Zulu-Eleven - Member

TJ - fact remains that the rule is that its automatically unfair dismissal, since he was dismissed for taking emergency leave - its for the employer to defend themselves in court and say their actions were reasonable, in this case the burden of proof is entirely upon the employer... and the reasonableness would have to be looked at taking into account his record over 3.5 years of service, and all the relevant circumstances, what's reasonable for one employee might not be reasonable for another... I wonder if the employer gave him the option of using holiday after the first day's emergency leave, was the employer being reasonable in the way they treated him? big complex questions.

a mercenary person would point out that thats a fairly good position to be in, and that the likely advice from the employers solicitor would be to settle out of court, since taking it to court will be both expensive and risky!

Posted 1 year ago #
geoffj - Member

OMITN + 1

Posted 1 year ago #
konabunny - Member

Why does law always seem to come down to what one man/woman deems is reasonable?

It's not - reasonable is an objective term, not a subjective one (i.e. what the lazy employee or bastard boss happens to think is reasonable). The court/ tribunal/ decisionmaker will make a decision about whether X was reasonable or not.

Posted 1 year ago #
BigButSlimmerBloke - Member

* your employer may let you take emergency leave
* you may have the right to take time off to arrange for care

I believe the rule in a case of dismissal for emergency leave is that its automatically unfair unless the employer can justify it - so the onus of proof is on them to show your use was unreasonable.

Get a lawyer. IMH(and unqualified)O you're on thin ice

Posted 1 year ago #
djglover - Member

Did you use up some of your holiday quota for any of the periods off work ? Some of them would fall into that camp IMO and I can see an employer coming to the conclusion that you were a PITA if you took them as days off outside of your holiday allowance.

Sorry - but that's how it looks (to me).

me too, time off for wife and time off for gran are annual leave. Your record does look problematic to me. Sorry if that sounds hash but I got no time off outside leave to look after my wifes complications in pregnancy or dying grandmother..

Posted 1 year ago #
BigButSlimmerBloke - Member

Posted 1 year ago #
poisonspider - Member

@TJ

If you read the link you posted it says:

Parental leave might be taken simply to enable you to spend more time with your young child.

It does not have to be emergency cover.

Posted 1 year ago #
brassneck - Member

Right now I'm pleased I work for a decent company, seems like most people on here are treated like poo by their employer.

You need a professional - there are too many 'reasonables' and 'mays' in the guidance to have a clear idea of where you stand.

Posted 1 year ago #
project - Member

Basicly its a tough world out there, your comapny have added up the days off in lost work and sacked you, a lot cheaper for them than redundancy, its going to happen a lot more frequently now as well as companies look to shrink.

Posted 1 year ago #

RSS feed for this topic

Pages: 12 Next »

Topic Closed

This topic has been closed to new replies.

Singletrack Mountain Bike Magazine

Chat Forum

Legal advice. Dismissed for dependent care?

Topic Closed

Don't miss…

Singletrack

Website & Forums

Exits