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Original poster

Denied sickness leave

102 replies

ImagineRainbows · 27/09/2019 16:01

Posting for my partner, can anyone tell me where she stands legally please.

This year she had had:

3 weeks sick leave in one block following a car accident and injury. Doctors note provided for this.

1 week bereavement leave

3 days, 3 separate occasions, emergency dependants leave to deal with childcare issues

Together this sounds a lot but separately it’s not excessive to have had 1 sickness absence. These are all being lumped together and she has had a letter stating she is not to take any more leave.

Today she had a dental emergency at work (abscess ruptured) and had to leave to attend an emergency dentist appointment as she was in excruciating pain and could not talk (customer facing role).

She has now been told that she must take this as unpaid leave and make up the hours. However her contract gives her 4 weeks sickness pay at full pay and she has not used this.

The owner is stating that as she was paid for the bereavement leave and 2 days of the emergency dependants leave when they don’t have to this has reduced her sickness leave entitlement.

My thoughts are while they don’t have to pay the other leave the fact that in the past they have chosen to does not effect her sickness pay and she is still entitled to 4 weeks full pay as contracted. Additionally by refusing her sickness leave today they are treating her unfairly for taking emergency dependants leave which is also against the law to do.

Can anyone advise how this would be seen legally?

OP posts:
Original poster
ImagineRainbows · 27/09/2019 17:12

@Ferretyone The problem with making time up is that she only works 3 days due to child’s disability and only having 3 days respite care. This is a flexible working request she has had in place for years. Making time up means working an extra day and she won’t be allowed to choose this day (when I’m off) so what would she do with disabled child?

They wonder why so many parents of disabled children don’t work! The manager has an issue with her taking 3 separate days. That’s what the problem is hence the letter. I think 3 days is pretty good considering his needs and the frequent hospital admissions but people not dealing with this will of course see it as a lot.

OP posts:
Original poster
ImagineRainbows · 27/09/2019 17:14

@Todaythiscouldbe It is illegal to deny an employee emergency dependants leave and they cannot refuse it or punish staff for taking it. It’s not discretionary. And yes 2 days paid 1 not paid. Everyone gets first 2 days paid, although they don’t legally have to but that’s the policy at her workplace.

OP posts:
Todaythiscouldbe · 27/09/2019 17:17

I meant it's not illegal to pay one person for bereavement leave and not another as that is discretionary. I was replying to your post.
Emergency dependants leave can be refused if it is not an emergency and could have been foreseen or planned for, in that instance parental leave is more appropriate.

zafferana · 27/09/2019 17:19

The thing is OP, to be put this kind of bluntly, but also honestly, your DP's employer doesn't care about your home situation. If your DP has a job and she's paid x amount to do that job for x amount of hours per week then she is expected to do that. Her childcare arrangements are Her (your) problem, not her employer's. You can't expect the employer to be sympathetic to your DC's ailments and appointments. That stuff is for you to organise outside of working hours. I know it sucks and it makes it hard and tbh it sounds like the employer has been more than understanding over your DP's frequent and quite lengthy absences this year, but if she wants to keep her job then it really sounds like she needs to try very hard to not let life outside work impinge on her job - at least for a while. I realise that a car accident and your DC's health are things outside her control, as was the tooth abscess, but it sounds like her employer's patience is running out for all the drama in her life recently.

YesQueen · 27/09/2019 17:22

Sickness happens. I get 6 months full pay and needed to use 5 months of it one year in a block. Were work happy? No. But at the end of the day I was unfit for work and the circumstances were out of my control and I took 5 months off

starfishmummy · 27/09/2019 17:27

I think 3 days is pretty good considering his needs and the frequent hospital admissions but people not dealing with this will of course see it as a lot.

I'm the parent if a disabled child. And I worked. From the point if view of your childs needs it probably isnt a lot. However she cant expect her employer to keep paying her wages when she is not working. There comes a point when she will have to use leave or take unpaid days. Sounds like that time has come, although it seems most of her days off have been for other reasons rather than child related.

LIZS · 27/09/2019 17:31

Dependant's leave is not a statutory entitlement. Does the company absence policy state otherwise? There may be a limit on paid absences for other than sick leave. It is not unusual to work back time for appointments such as dentist although that is more for routine check ups. She could self certify for her dental emergency.

Original poster
ImagineRainbows · 27/09/2019 17:36

Yes it can be refused if it’s not an emergency but the guidelines state that an ill child is classed an emergency, a breakdown in childcare is classed as an emergency etc. The 3 days have all been days when our son was ill. 2 of those days resulted in hospital admissions. Each time she only took the first day and not the whole time he was in hospital. The employer is annoyed as she refused to leave him with my daughter on these days. To give the background son has MCADD that means that him being ill, not eating, vomiting etc. is potentially fatal if not managed correctly. It is NOT something a 17 year old can effectively manage.

I know it’s not the employers problem and they don’t care. I’m not asking if anyone thinks it’s excessive etc.

The question I am asking is it legal to deduct her sick leave that is in her contract because she has taken other leave that is not sick leave.

For example @YesQueen you took 5 months leave from your 6 months allowance. Let’s say you had 5 weeks leave for other reasons, dependants leave, bereavement etc. Would you have considered it reasonable that your last week of sick leave was unpaid due to this?

Her contract states 4 weeks full pay. It doesn’t say except in x y z situation. It doesn’t say unless you take other leave, it doesn’t say can be reduced etc. So can her employer legally change the rights given in her contract without prior agreement is the question being asked. People are focussing on the length of leave she’s had and not the actual legal situation.

OP posts:
Original poster
ImagineRainbows · 27/09/2019 17:37

@LIZS Yes it is
www.gov.uk/time-off-for-dependants

OP posts:
LIZS · 27/09/2019 17:42

Not necessarily paid though and only "reasonable" time to deal with it.

TimeforanotherChange · 27/09/2019 17:42

4 weeks sickness pay is an awful lot - particularly for a part-time worker. Surely she is only entitled to 3/5 of whatever the sickness allowance is.

At our place you would be on a first stage warning after 12 days absence in one year.

HappyHammy · 27/09/2019 17:43

Maybe she should talk to ACAS about this if she is not in a Union, they also have a very good website. It's difficult for anyone online to give legal advice and not always the best way forward.

jennymanara · 27/09/2019 17:47

Talk to ACAS. I suspect it is illegal.

TheBossOfMe · 27/09/2019 17:47

Surely her paid sick leave allowance would be pro-rata since she's only part time. So she doesn't get 4 weeks, she get's 4 weeks pro-rata to her contracted days.

What does her contract say about pro-rata allowances for sick leave, holidays etc?

Mummyoflittledragon · 27/09/2019 17:52

You can make a thing about it. Technically you’re correct but as pps have said they can claim the money back already paid. I think she should let it go and you should take emergency carers leave off the next 3 times if you want your dp to keep her job.

AllFourOfThem · 27/09/2019 17:54

Legally her employer does not need to allow her time off for a dentist appointment. Time off for dependants should be annual or unpaid leave. Bereavement leave should be separate altogether unless the amount of time off exceeds the time the company offers (so the company offers two days but the employee has three days, this means one day will go as sick or possibly holiday/unpaid if agreed). Sick pay and leave comes down to the contract.

zafferana · 27/09/2019 17:55

Surely her paid sick leave allowance would be pro-rata since she's only part time. So she doesn't get 4 weeks, she get's 4 weeks pro-rata to her contracted days.

Good point!

BritInUS1 · 27/09/2019 17:57

She needs to call ACAS not ask on here

ChicCroissant · 27/09/2019 17:57

No, she should get 4 of her weeks paid sickness according to the policy.

OP, I can see that it is difficult for her to make any time up by working - would you be willing to repay any leave (such as the bereavement leave) if it meant the company would no longer consider it sick leave?

imnotinthemood · 27/09/2019 17:58

Talk to ACAS. I suspect it is illegal.
Absolutely ridiculous comment !!
Technically op you are right but I think offering unpaid is fair it is quite a bit of time off sickness and bereavement . So to request you get paid is unfair. I'd suck it up it's a very generous company some people have no paid sickness at all .

flowery · 27/09/2019 17:58

This thread is disappointingly unsupportive.

Three weeks sickness absence is a lot, however in the event of a car accident, it's perfectly acceptable. It's not like three weeks' worth of a day here a day there, headaches and upset tummies.

Three days emergency dependants' leave in circumstances described is also perfectly reasonable, and much less than many would take with a disabled child.

Unless there is any element of discretion built in to the contract regarding sick pay, then if they refuse to pay it up to the four weeks she is entitled, they are in breach of contract and are making an unlawful deduction from wages.

Bereavement leave might be discretionary, but if they wanted to be able to offset different types of paid leave against an overall total, they should have drafted that into the contract. They opted not to do that, therefore each element of leave needs to be handled individually, either according to statutory entitlements or contractual entitlements, whichever is relevant.

LIZS · 27/09/2019 17:58

4 weeks of her contracted days/hours. So if she works 3 days a week it is 12 working days.

CherryPavlova · 27/09/2019 17:59

I think there’s not enough information to judge on. We allow six months full paid sickness absence and six months half pay. I’d happily support a member of staff having chemo or a hysterectomy to fully paid time off. I’d be more concerned about lots of short absences and step in sooner.
The three weeks for a car accident would depend on what the injuries were. A sprained finger would be swinging the lead, a broken ankle and dislocated shoulder, less so.
Same with bereavement. I have given two weeks off for a member of staff to go to Australia when a parent was dying. I’d do so again, if necessary. A week for second cousins eldest daughter would be a stretch.

Often dental appointments don’t count as sickness absence and there is a clause saying they should be in your own time, whenever possible. If I was part time and needed an urgent appointment, I think I’d make up the hours.

flowery · 27/09/2019 18:00

"I think offering unpaid is fair it is quite a bit of time off sickness and bereavement . So to request you get paid is unfair."

This astonishes me. The woman has had a car accident and a bereavement and you think she should volunteer to take unpaid leave instead of sick leave to be 'fair' to her employer?

Good grief.

Africa2go · 27/09/2019 18:03

I dont think a dentists appointment is class as sick leave?

Also, from what i understand, emergency dependant's leave is only allowed by most employers whilst you make alternative arrangements. If they believe you have alternative arrangements (ie your daughter) then may think your partner doesnt need to take emergency leave.

It also sounds as though the business has been inconvenienced quite alot i.e. you said she just left today, and has phoned up on 3 occasions for emergency leave, whilst she's in a customer facing role.

I realise i'm not answering your question but noone can answer that without seeing your partner's contract. I think you need to speak to an employment solicitor if you want to escalate it.