Absence management exemption

[MuckyMessy]

I’ve name changed for this

I’ve had 4 periods of absence in a year, 2 occasions were vomiting bugs. I work with extremely vulnerable children so it’s imperative that I absolutely adhere to best practice that requires me to be absent for 48 hours from the last episode of sickness.

The other 2 absences were each only a day long but as a result of mastitis. Im wondering if this could be considered pregnancy related sickness? Since breastfeeding happens following pregnancy?

As per my employers policy on maternity I notified my line manager prior to my return to work that I was currently breastfeeding and requested that they allow me opportunities to express to continue to facilitate me breastfeeding. This was never acted upon. In hindsight I should have followed this up, but my job was a new position with the same employer and on my return to work my direct line manager (whom I had had email correspondence with was absent, I felt very vulnerable discussing breastfeeding with any other member of the management team and didn’t pursue this further.

I've been summoned to a meeting where by employer intends to instigate their absence management policy. I've since been reading their policies on both absence management and maternity, where by I’ve discovered that on my return to work my employers should have conducted a new/expectant mother’s risk assessment. They failed to do this, therefore would it be considered unfair for them to proceed with the absence management since they have, on effect failed on their duty of care to myself on the grounds on health and safety.

I've been trying unsuccessfully to contact maternity action to see if they could provide me with some guidance around this, any advice would be most appreciated

Absence management means they will have a formal meeting with you to discuss you have had 4 separate absences in a year. That is a perfectly reasonable action for them to take. As your employer they are taking their responsibility seriously in terms of direct interaction with you to find out more about those 4 absences.

requested that they allow me opportunities to express to continue to facilitate me breastfeeding. This was never acted upon

By "never acted upon" do you mean they didn't give you positive confirmation that you had their support to express during work time? If so, then you could highlight the actual impact of them not acting upon it. You need to be specific about what it was you needed them to do. As you've acknowledged, you didn't follow it up, that doesn't necessarily make them negligent. It was circumstance.

They failed to do this, therefore would it be considered unfair for them to proceed with the absence management since they have, on effect failed on their duty of care to myself on the grounds on health and safety.

Please don't conflate their absence management policy with any actions you believe they should have taken as it will make you look like you are passing the buck for the 4 occasions you were absent. By all means point out what you believe they could have supported you on, to try and improve the situation for the future, but it won't go down well if you don't recognise you took time off which is fairly triggering the policy.

They'll probably have the meeting, discuss the absences, but I doubt they will take formal action against you at this stage, but what does the policy state? Clarify that 2 absences were mastitis and say you understand this could be classified as pregnancy related, but can they confirm the policy.

Work with them on it, rather than being too keen to place blame on them, is my advice.

Also, did you self certify in writing? Either with a form, or in their HR system. Always worth doing, and I expect that's part of the policy anyway, as this clarifies to all concerned at the time of the absence exactly what the reason was, which means there is no confusion re pg related absences.

No it doesn’t count as pregnancy-related sickness absence for the purposes of the extra legal protection you would get.

”I’ve discovered that on my return to work my employers should have conducted a new/expectant mother’s risk assessment. They failed to do this, therefore would it be considered unfair for them to proceed with the absence management since they have, on effect failed on their duty of care to myself on the grounds on health and safety.”

Excuse my ignorance about breastfeeding but are you saying them not doing a risk assessment caused you to develop mastitis?

Well, yes, as they haven't provided her with any facilities to express as she requested. By law they have to provide a private room and a fridge.

”Well, yes, as they haven't provided her with any facilities to express as she requested.” I am guessing by that comment that not expressing causes mastitis?

”By law they have to provide a private room and a fridge.” She doesn’t say there wasn’t a private room or fridge, so we don’t know they didn’t provide those.

in my non legal opinion mastitis would be pregnancy related, men don't get it ffs.

There are lots of medical conditions men don’t get. And vice versa. This particular condition isn’t caused by pregnancy.

I fully accept that I was unfit for work/was absence on 4 separate occasions.

Both occasions where I had mastitis were following a mandatory prolonged day, where I was required to attend meetings beyond my standard working day, so I believe this was the cause for mastitis.

If a risk assessment has been completed then I feel that extra measures could have been put in place to minimize the chances of mastitis, such as opportunities to express, allowing me to leave work to feed my child and then come back to attend meetings. There are many factors that can contribute to mastitis and there is no way of telling the exact cause of my mastitis.

I wondered if mastitis was deemed (indirectly) pregnancy related since its an infection of the breast that occurs in lactating women, who would only be lactating as a direct result of pregnancy.

No facilities were provided for me to express, not was I given time to do so.

”Both occasions where I had mastitis were following a mandatory prolonged day, where I was required to attend meetings beyond my standard working day, so I believe this was the cause for mastitis.”

Did you say when they told you about the prolonged day, or on the day, that you’d need a break to express? Did they refuse?

I appreciate you told your line manager prior to returning to work that you needed facilities for breastfeeding, but how long afterwards were these prolonged days? You see my point here- if it was a while after you’d returned, they were not aware of a problem because you’d not said anything, and you didn’t say you needed breaks during these long days, that’s a bit different from you saying “I’ll need a break during these long days to express, please let me know when I can take these and where do I go “ and them saying “No you can’t have breaks”.

”If a risk assessment has been completed then I feel that extra measures could have been put in place to minimize the chances of mastitis, such as opportunities to express, allowing me to leave work to feed my child and then come back to attend meetings.”

You are right they should have done a risk assessment. But if everything seemed fine and you raised no concerns, I can see why they didn’t. If you’d asked for one several times and they’d refused, or had raised concerns they ignored, that’s a different scenario.

”I wondered if mastitis was deemed (indirectly) pregnancy related since its an infection of the breast that occurs in lactating women, who would only be lactating as a direct result of pregnancy.”

No. The specific pregnancy-related protection wouldn’t apply, you are back at work and it isn’t your pregnancy that caused it. If you wanted to argue discrimination it would be sex discrimination.

”No facilities were provided for me to express, not was I given time to do so.”

But were they actually aware this was causing a problem?

I raised concerns in December following a short meeting discussing my absences and highlighting that I believed the longer days contributed to mastitis.
Prior to my absences I didn't raise concerns though, as I believed my supply had adjusted to not expressing, only after the second bout I considered this to be a recurring pattern and consider that this might have prevented my suffering and absences. There is no way to know for sure though as a number of factors can cause or contribute to mastitis

www.laleche.org.uk/legal-rights-breastfeeding-mothers-returning-paid-employment/

It sounds like a communication problem. Your employer's does need you to tell them more clearly what your concerns are, as they can't just guess.

It would be appropriate for you to bring up your concerns at your absence management meeting because that meeting should be a to way dialogue about your health related absences. I just wouldn't take the approach of blaming them as it won't help your cause.

Sorry two-way dialogue

What extra measures did you actually expect them to provide or allow that you don't think they did enough of? Just asking in terms of what you need to be more clear about with your employer.

And how much longer were your days/ how many extra days did they need you to do. If it was 1 extra hour for 2 days then I don't think that's a valid thing to claim, if it's 3 hours for a week then it is worth mentioning, but in honesty I would have raised it at the time not several months later. It's all about what's reasonable.

Update

My absence management meeting has been cancelled, my employer has started that the believe the episodes of sickness related to mastitis to be exempt from usual absence management rules and have therefore discounted them.

It was also decided that they were in breach of health and safety to myself, for failing to conduct a new/expectant mum risk assessment, and have apologised for this.

Thanks for all the advice given to me.

They sound like they have done the decent thing, which is good to know. I'm very pleased for you it all worked out well. Thanks for the update.