Denied sickness leave

[ImagineRainbows]

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?

To those asking:

The injury from the car accident was a broken knee. She works customer facing and has to stand all day. She was denied a chair at work as the chairs don’t reach the desk she operates from and that would have meant buying a new chair. She went back the second she was able to weight bear.

The bereavement was her mother, completely unexpected death. She’s the eldest child of her divorced mother and had a LOT to deal with following it.

As I’ve explained the emergency dependants leave WAS for emergencies. I don’t expect you to understand the ins and outs of MCADD as it’s rare but a vomiting child with MCADD needs rescue solution to boost their glucose level. If they vomit that back then it’s a hospital trip for IVs. The doses given at home are carefully measured depending on food given, amount of vomit, any other signs of illness etc. It’s taken us YEARS to get to grip with this and we are adults. A 17 year is not suitable as she’s not experienced in the medication levels or aware of when to seek help. Plus she couldn’t get him to the hospital if needed and even if she got a taxi etc. she can’t consent to his treatment. It MUST be one of us off.

Yes this is my child also and yes I have also had emergency dependants leave from my job to deal with things. She tends to take the first day and I take any after that if he ends up admitted as I work at the hospital so can work and pop down to the paediatric ward throughout the day.

The dentist appointment WASN’T a routine dentist appointment. She went to work despite having an abscess. It ruptured during the day. She couldn’t talk, was in agonising pain and was vomiting due to the pain. She got permission to leave to go to an emergency appointment. That took an hour and she went back to work for the rest of day. She was gone an hour and 10 mins in total. She did not take her lunch break today either so really only 40 mins of the company time.

Her absences have not cost the company “thousands” they are over-staffed at the moment due to 2 stores merging and having to stick to people’s contracts and so the days she was off no extra staff needed to cover as they didn’t need that many anyway.

She has worked there for 4 years and never had this level of absence. It’s just been a rubbish year with the car accident and bereavement happening so close together. She’s almost never off sick usually.

Last year she had a total of 4 days off, all emergency dependants leave, and was put on an action plan due to this.

The owner has an issue with the emergency dependants leave. He has made that clear over and over again. She is the only female employee in a typically ‘male’ industry and she is the only employee with children. The manager has made comments repeatedly about how our son isn’t “really” disabled as physically he is ok. Saying a 17 year old should be able to care for him despite not understanding the level of care he needs. Saying she is being “dramatic” when she explains MCADD is potentially fatal if mismanaged despite having no clue about the condition etc. He has a problem with her using her statutory leave and now is punishing her in other ways as she went to HR about the action plan last year. HR warned him off.

Our concerns are not just about today. A bit of time unpaid isn’t the end of the world. It’s the fact he has taken 1 weeks sick leave off her (3 days as yes it is pro-rata and she works 3 days a week) and if she has any illness between now and December she will be forced to make the hours up when he knows she would really struggle to do that. Plus it’s in her contract that she gets 4 weeks, no ifs no buts that’s what it says.

If she had bereavement leave in December and then 3 weeks sick leave in say February this wouldn’t be an issue. It’s just the way it’s fallen this year but she’s not likely to go around getting into accidents or losing parents every year so surely any human could look and see it’s been a shit year but this isn’t regular. I’d understand more if she was constantly off with a headache as that may continue. Her mum isn’t going to die again!

Three days paid for bereavement is actually quite generous. Many employers, including public sector would only allow unpaid leave for the day of the funeral. They would however likely grant annual leave.

It's amazing what people expect their companies to give them so that they can keep their annual leave to take as holiday. Annual leave is not holiday leave, it's leave for any reason that means you're not at work.

Has she suggested taking annual leave when she (and you) have childcare emergencies?

@Uptheduffy Yes there are special rules for disabled children. It relates to parental leave not emergency dependants leave though and that states she can take 4 weeks a year unpaid. As he is disabled she can take 1 day at a time if she wishes. That has to be agreed in advance though. She has never taken parental leave in 4 years.

Emergency dependants leave is for an unforeseen problem. Such as him being ill etc. That’s literally all she uses it for. Granted we are both using more since she lost her mum as her mum was our emergency back up childcare and had learnt how to deal with his medication regime as we lived with her when he was a baby and critically ill. Now we have no back up so it’s us or no one. Leaving him with someone not familiar with MCADD and not able to manage it can honestly be fatal. Her manager does not understand the severity of it and doesn’t see why he can’t go to a friends house (comments made when she requested flexible working).

@swingofthings She doesn’t have a choice when she takes her annual leave. The business closes 4 weeks a year plus bank holidays and she has to take her annual leave then. That’s the same for all the employees. She can’t take annual leave days at any other time so that’s not an option.

If HR have been supportive before, she could ring HR and say what he has told her and ask if that is right? It is not right and HR should say that.

That is a huge amount of leave in 9 months.
Dependents leave would not usually be paid. I would just leave it and make sure she's not off till the end of the year.

OP I don't think it's fair that she is the default, first-day-off person. Unless sickness usually runs into two days for the child. There will be far more one-day-off absences for lost families and I fail to see why your dp should be the one taking them. If she is part time she is already doing her share by having two days a week when no care is required.

I would ask them to put it clearly in writing.

So how much emergency leave she is entitled too by law for a disabled dependent.

How much her sick leave is as per her contract.

How they have recorded her bereavement leave when she requested a day but they arranged 3 days paid without a request for this.

How when she's had 1 period of sick (3 weeks) they can legally change the status of previous leave and deny her further dependents leave and to give you the relevant legal points they are referring too so you can check with ACAs.

Wow. Thank god @flowery is here, some people are talking out of their arses. In what world would it make sense to say "well you've used 3 out of 4 weeks of sick leave, but we granted you X and Y unrelated paid leave as per your contract, so you now have to forfeit the rest of your sick pay entitlement"?

So I would use it as annual leave to show some give and take given the week paid for bereavement. Or take this afternoon unpaid. However you mention that she does day1 of sickness and you do day 2 onwards. Think you need to step up and do some day1 sickness too as she may risk losing her job

Surely she’s had 3 weeks after the car accident, then 3 separate days which as she works 3 days a week equates to a fourth week , so her sick allowance, Then today she took further sick leave of half a day . That means 4 weeks plus half a day , so over her sick allowance hence why they have an issue.

In terms of her taking day 1 and me taking day 2 onwards.

The reasons for that are

a) almost every illness runs into several days, 2 out of the 3 resulted in hospital admissions and this way spreads it out. Plus as I work in the same hospital if an admission runs into several days, which it often does, I can be at work and still attend the paediatrics ward at short notice if needed.

b) I am an NHS midwife. Me being off with very little notice means patients having appointments cancelled whereas being able to give 24 hours notice while she takes the 1st day means patients are less affected.

And c) as unfair as it is if I lose my job we are homeless, if she loses her job we will have less luxuries but we will survive.

As it happens this year she’s had 3 days and I’ve had 7. Although for 5 of those 7 days our son was an inpatient so I was working and going back and forth to my son as well.

Again to @JoanieCash she has no choice as to when she takes her annual leave. The business closes for 4 weeks a year and that’s her annual leave allowance. She can’t use it at any other time.

A broken knee and a mother dying would be met with reasonable sympathy from me. A child with MCADD would also trigger my empathy switch.
Given the circumstances I don’t think it is much time off. Three days bereavement leave for a parent just isn’t reasonable.
I think I’d still offer to make up hours for a dental appointment though but as an employer I’d not accept the offer.

I'm still unclear as to whether OP is working or taking emergency care (the popping up and down stuff) or why their job is under threat if they are off on the first day?
It all sounds very difficult and surely some of the ignorance about the disabled child must come under a protected characteristic somewhere (not being ignorant obviously, but the ignorance seems to be leading to the mother being treated unfavourably.)

I had emergency treatment at dentist, I had to take it off as holiday (not routine appointment)

She doesn’t have a choice when she takes her annual leave. The business closes 4 weeks a year plus bank holidays and she has to take her annual leave then. That’s the same for all the employees. She can’t take annual leave days at any other time so that’s not an option .

Over the longer term your DP may be better off trying to find a job with more conducive conditions of employment for her particular challenges. Having to take all annual leave for the entire year as 1 block of time really reduces flexibility and contingency

I would do as suggested upthread and list out all leave taken, what the circumstances were and work with HR to determine whether (a) contractual (b) discretionary and (c) whether each absence was correctly paid according to her contract paid or unpaid. This will enable employer and employee to determine the right way forward according to her contractual rights. Keep it factual and reasonable and find a way through it As I've said on here before, contracts are in place less so when everything in the garden is lovely and more for when things go pear shaped. It gives both sides a framework from which to have a pragmatic dialogue and reach agreement.

The challenge will be if her employer digs their heels in over the way they've handled the discretionary leave as it could turn quickly sour and that gives your DP a much bigger problem at a time when she needs all her emotional energy and resource. Lose the battle to win the war.

You and your DP have my complete empathy. It sounds like it's been one helluva year for you both. I hope she can find a way through with her employer.

You haven’t had 7days, you’ve had 2 days off work and your dp had 3 days. The other 5 days you were working and available for your ds. That sounds fair actually.

So she took 40 mins extra due to a ruptured abscess. It’s ridiculous that the manager expects her to make that back. Now that you’ve given more of a back story, I’m wondering if the manager is also worried about their job. The department is over staffed. There will be cuts. Can she make up the time easily? An extra 10 mins a day only takes 4 days for example. Otherwise she could talk to hr.

She has the right to the time off, but the owner can now stipulate that it's unpaid if she's had longer than the contractual amount of paid sick and compassionate leave. He cannot ask her to "make up the hours".
If she was hospitalised tomorrow for a month, say, he cannot sack her because she can't work. He has to hold her role open for her even though she'd be unpaid during that time

From what you said above, it sounds like your DP is skating on thin ice with her manager and with the company being overstaffed she should be very careful how much of a stink she kicks up about this. You say the company is overstaffed currently and that she was given a warning last year about using 4 emergency days. TBH this job sounds pretty rubbish too, what with the enforced 4 weeks holiday and no other leave allowed throughout the year. If I were her, I think I'd be looking for a new job as apart from the generous sick leave entitlement there really doesn't seem to be much to recommend this one - and I suspect her manager is looking for reasons to get rid of her anyway.

Ultimately the bereavement leave and emergency leave are unconnected but I'm very sorry for your loss. If the sickness policy states 4 weeks per either calendar yr or more typically rolling twelve months then that is what should be paid. Owning a business I understand the cost and issues around staffing but a contract is just that and should be adhered to. However, an initial dental appointment is not sickness absence but time off following dental work due to pain etc would be. We would pay for a dental appointment under the circumstances you describe but equally lots wouldn't. It sounds like a lot of different leave is trying to be rolled up.

I agree that if she has no choice as to when she takes annual leave, she might want to look for a job that allows her to take days off at short notice.

I think you are over reacting though. What they are saying is that whatever leave she takes from now on won't be paid. They are happy for her to make the time off for her dental appointment. How is that not reasonable?

Ultimately, they could argue that going for a dental appointment is not sickness. It is also highly likely that the full pay 4 weeks sickness is their policy but still discretionary. This is how it is with my OP's employer. Most people get 4 weeks full pay, but they don't have to, and indeed, when they get people who seem to take many other paid leave in a short period of time, they do reduce the sickness days fully paid.

Your OH needs to either lay low for the next 6 months, so she needs to be prepared for being dismissed as it does seem they are running out of sympathy for her.

Sorry for the late post but here goes
Contractually still has 1wk sick pay left
As left work for a period of time to attend dentist this is unpaid
Dependant leave doesn't have an actual cap on number of times but what is reasonable. This means that the emergency must have been unforseeable. The entitlement is for you to care for dependant that day and to make arrangements for alternative care on subsequent days and importantly for you for future occasions if the emergency will be reaccurring. The company can discipline if the dependant leave is for the same reason everytime but must follow discipline procedures it sounds like they tried to start this by doing the more informal first step but hr got scared probably as lots of hr staff are not that clued up on the law and heard disabilities and panicked
When contacting hr do not discuss compassionate leave as it has nothing to do with either issue and may muddy the water.

Three days paid for bereavement is actually quite generous. Many employers, including public sector would only allow unpaid leave for the day of the funeral.

For the death of a parent? Absolutely ridiculous. Funeral day only is fair for a relative you hardly see. I was allowed one week (public sector) when my dad died; 2 weeks when my mother died 25 years ago (she lived elsewhere and I had to clear her council house); my current company gave me a week when my sibling tried to commit suicide as I had to go up there and sort matters out. Both were private sector.

In both public and private sector I have, after being there a couple of years, been entitled to a minimum of 3 months paid sick leave, rising to six after being there longer . I had one job which gave 2 weeks before you had to go onto SSP. I was not advised of this at interview and left after a year to get a better job.

If I was the OP I'd get job hunting asap.

@starbucks I agree with you, except I find that a lot of firms have done away with more generous paid sick leave. I took generous paid sick leave for granted in the past, now so few places seem to offer it.
It inevitably means that people are plunged into poverty if something happens such as cancer or a heart attack or a serious car crash.

For the death of aparent?

With us, you get 3 days for patent, sibling or child. Anyone else is 2 day at manager''s discretion. 3 days is ridiculous, if you're the one expected to organise the funeral and execute the will, let alone the emotional effects of grief, but going by past discussions, 3 days does seem to be at he generous end of what employers may offer for bereavement, if they offer anything at all.