Disabled Baby & Sacking issue

[tiaposy]

My niece and her partner have a disabled baby. Her partner is a contractor with a rubbish collection firm. I know they have been funny with him in the past about taking time off. He had a week off last week as my niece had to have her appendix removed so he had to look after their son. Now my niece is back in hospital with an infection and his work have told him if he has any more time off, they will dismiss him! Can they legally do this?

Please help

[bazak1]

firstly it depends on the way in which he is employed and the amount of time off he has had.

If he is " casual " then as far as i know there isnt a lot he can do. If it is a properly employed job then he obviously has rights.

take a look at ( or ask him to) http://acas.gov.uk

which is the recognised site for helping with employment issues.

My place of work has a couple of lads who have taken countless days off and they have been interviewed and informed that their attendance is now being monitored and will lead to disciplinary procedures if it doesnt improve.

good luck

 

baz

[Ell-enn]

Hi there,

 

Firstly, is he on a temporary or permanent contract and has he had any formal warnings regarding his absence?

 

Kind Regards

 

Ell-enn

[GlasweJen]

subscribing

[cal37]

The Employment Rights Act 1999 (ERA) gives a right to every employee, regardless of length of service, to take a reasonable amount of unpaid time of work "to take action which is necessary" to help when a dependant gives birth, falls ill or is injured or assaulted. A "dependant" in this context means spouse or civil partner, partner (including same-sex partner), child or parent of the employee or any member of the employee’s household who is not their employee, tenant, lodger or boarder. Where time off is to take necessary action to help when a dependant falls ill or is injured or assaulted, the definition extends to "any person who reasonably relies on the employee for assistance" on such an occasion. That means an individual for whom the employee is the only person who can help - for example, an elderly neighbour with no relatives or other neighbours, who is living alone and who falls and breaks a leg. In all cases, the right is limited to the amount of time that is reasonable in the circumstances of the particular case. In most cases, whatever the problem, one or two days will be the most that is needed to deal with the immediate issues and sort out longer-term arrangements if necessary.

 

Who is eligible for Carers’ leave

 

employee’s own child(ren)

 

next of kin or nominated next-of-kin

 

partners

 

parents/parents of partners

[poppynurse]

My HR department is toughening up on carers leave after abuse by staff. They now expect people with dependants to have contingency plans for if the dependant is ill - they argue that it is inevitable that dependants will be ill at some point therefore forward planning is possible. They suggest that those who have no family in the area should save annual leave 'just in case' or take unpaid leave.

[cal37]

Poppynurse, that’s beside the point. The Employment Rights Act 1999 gives you the absolute right to take unpaid time off to deal with an unexpected illness.

Regardless of them “toughening up “they have no choice but grant the leave.

Now they can deal with people who seem to take the preverbal via the normal disciplinary procedures if they wish.

[poppynurse]

Our HR take the view that illness is predictable and therefore not unexpected - that it should be planned for.

They may grant one or two day's leave if we're lucky.

 

But after two abscences in one year it's down the disciplinary route using the attendance policy...

The original poster has already had one week off and now needs more - it's quite possible that the employer will mke life difficult for him.

[cal37]

They can not discipline you for exercising your rights under the Employment Rights Act. They would have to show that you have taken excessive time off and abused the system.

 

How they seem to think that illness is predictable i have no idea................i know i`m going to get the flu on 29th feb 2009 . My advice in the case of only 2 absences in one year is to appeal it and if necessary take things to an ET.

[Weird Al Yankovic]

Our HR take the view that illness is predictable and therefore not unexpected - that it should be planned for.

They may grant one or two day's leave if we're lucky.

 

This is a joke, surely?

[hanzo]

The Employment Rights Act 1999 (ERA) gives a right to every employee, regardless of length of service, to take a reasonable amount of unpaid time of work "to take action which is necessary" to help when a dependant gives birth, falls ill or is injured or assaulted. A "dependant" in this context means spouse or civil partner, partner (including same-sex partner), child or parent of the employee or any member of the employee’s household who is not their employee, tenant, lodger or boarder. Where time off is to take necessary action to help when a dependant falls ill or is injured or assaulted, the definition extends to "any person who reasonably relies on the employee for assistance" on such an occasion. That means an individual for whom the employee is the only person who can help - for example, an elderly neighbour with no relatives or other neighbours, who is living alone and who falls and breaks a leg. In all cases, the right is limited to the amount of time that is reasonable in the circumstances of the particular case. In most cases, whatever the problem, one or two days will be the most that is needed to deal with the immediate issues and sort out longer-term arrangements if necessary.

 

Who is eligible for Carers’ leave

 

employee’s own child(ren)

 

next of kin or nominated next-of-kin

 

partners

 

parents/parents of partners

 

Just to clarify this, there is a right under s.57A to take reasonable time off for the care of a dependant under the Employment Rights Act 1996, s.57A (as amended)

Employment Rights Act 1996 (c. 18) - Statute Law Database

The above is right, but it always helps to quote the exact bit of the statue in a grievance..

[Ell-enn]

Poppynurse - Are you supplied with a crystal ball or is it in your job description that you need to have second sight?

I wouldn't mind having a look at this attendance policy they have in place!

 

What sort of employer is it you work for?

 

Kind Regards

 

Ell-enn

[poppynurse]

I work for the NHS! Obviously you cannot predict when a dependant is going to be ill but HR take the view that a dependant will be ill at some point so the employee should have a contingency plan so that they can still attend work.

I argued these policies (attendance and special leave) with the assistant director of HR and he was adament that they can discipline people for poor attendance regardless of reason, the special leave policy is designed to cover unforseeable events - he says a dependant being ill at some point is forseeable. He cited cases from ET where employee was sacked for failing to achieve 95% attendance and the dismissal was upheld.

Not saying I agree with this policy.

[demon_x_slash]

I had a boss when I worked in retail who said this very thing to me; that I should be able to predict when I would be ill and that a phone call two hours before the shift in the morning (standard policy - start at nine, call in by seven) just wasn't good enough. I'm afraid that I couldn't even come back with a snappy retort - I could only stare at him in disbelief. Words wouldn't come

[electron99]

I work for the NHS! Obviously you cannot predict when a dependant is going to be ill but HR take the view that a dependant will be ill at some point so the employee should have a contingency plan so that they can still attend work.

I argued these policies (attendance and special leave) with the assistant director of HR and he was adament that they can discipline people for poor attendance regardless of reason, the special leave policy is designed to cover unforseeable events - he says a dependant being ill at some point is forseeable. He cited cases from ET where employee was sacked for failing to achieve 95% attendance and the dismissal was upheld.

Not saying I agree with this policy.

 

If I understand this correctly, you should keep back some of your leave in case you are ill. What if you are not ill.Surely everyone taking the rest of their leave entitlement at the end of the leave year is hardly an efficient way of running a company or health service.

[Weird Al Yankovic]

If I understand this correctly, you should keep back some of your leave in case you are ill. What if you are not ill.Surely everyone taking the rest of their leave entitlement at the end of the leave year is hardly an efficient way of running a company or health service.

 

Yes. Surely sick leave is for that purpose-you are sick. What's that got to do with annual leave?

 

I can understand a contingency plan being put in place for a dependant, as in this thread, and the contingency appears to be that the dad is looking after his daughter. What is wrong with that?

 

Would the NHS bigwigs expect employees to leave their children with strangers?

 

However, it is the case that an employee is often sacked for being ill and this is upheld by an ET.

[cal37]

This is true and has happened many times, in fact I have posted a few times pointing out this fact.

 

To dismiss someone for exercising their rights under the employment rights act would not be upheld unless the employer could show that the employee had abused their good will.

[davjoh]

Coleman v Attridge Law and another

 

15/01/2007

The claimant, Miss Coleman is not disabled but she complains that she has been subjected to disability discrimination on the grounds of being the carer of a disabled person, namely her son (who, it is accepted, is disabled within the definition set out in the DDA 1995). It was argued on behalf of Miss Coleman that discrimination by association with a disabled person is covered by the Equal Treatment Framework Directive 2000/78/EC (which prohibits discrimination “on the grounds of” disability). Further, it was submitted that the DDA, as amended by Regulations (SI 2003/1673) which were brought in to ensure that the DDA fully implemented the disability strand of the Directive, must also be construed in this way.

 

The EAT dismissed an appeal against the decision by an employment tribunal Chairman to refer questions directly to the European Court of Justice for a preliminary ruling on whether associative disability discrimination is covered by the Equal Treatment Framework Directive. The reference to the ECJ should now proceed. The case could, ultimately, have significant implications for the rights of carers and others who are “associated” with disabled people. In the meantime, if an individual believes they have been discriminated against in employment (or a related area) because of their association with a disabled person - even though they themselves are not disabled - they should follow the statutory dispute resolution procedures where they apply and/or submit a claim under the provisions of Part 2 of the DDA in the employment tribunal within the relevant prescribed time limitation period. They should then ask the tribunal to stay the case pending the outcome of the reference to the ECJ in the case of Coleman -v- Attridge Law & another.

 

Source: DRC archive website.

 

(I hope this is appreciated, its been bugging me all day - I knew I'd read about a case, but could I find it? Could I heck! Lol)

 

If you need to ascertain if the baby is disabled under the DDA, please post back age of child, date of diagnosis and details of diagnosis.

 

Davjoh

[morteee]

Our HR take the view that illness is predictable and therefore not unexpected - that it should be planned for.

They may grant one or two day's leave if we're lucky.

 

 

I once had a manager call me into a meeting for looking after my son when he had german measles, he asked me what steps I was going to take to ensure my son wouldnt be ill again!

 

after looking at him for a few moments in gob smacked amazement I suggested that maybe I should wrap my son in cotton wool and lock him into an hermatically sealed room but that this would be rather expensive amd I would need a pay rise to accomodate it

 

I then went to HR and complained ( he had also suggested that I was lying about what was wrong with my son because his mother was a nurse and therefore he knew about these things?)

 

When I pointed out that not only did my son have a contageous illness but that I could have been a carrier and we had 3 ladies in our office who were in the early stages of pregnancy they not only slapped his wrists for being a pompous fool but PAID me for the days off! (He also tried to make me ring neighbours to collect my son one time when the school called me to say my son had had a bad fall and was being taken to A&E with a suspected broken ankle - I had been in the house less than a month and therefore didnt KNOW them!)

 

Employers attitudes to sickness stuns me, dont they realise that if they DONT pressure people to come in ill they dont end up with an office full of flu ridden miserable people purely becuase someone was too scared of losing their job to take a few days off to get better!

 

Once the above mentioned manager left the company the new lady in charge treats us like adults, doesnt grill you for hours if you ring in sick, doesnt put you through the grinder when you come back in, sends get well soon pressies for the ill kids when their parents are off and fights to make sure you get paid time off NOT taken from your annual leave if possible

 

guess what

 

absenteeism in our office has dropped 40% since he left and she joined!

 

sometimes trust and understanding go a LONG way

[Weird Al Yankovic]

Good post morteee.

[cal37]

I think all employers in this day and age should be understanding where ill children are concerned.

 

Its easy for them to say get a relative/childminder to care for them. Many people are on nation minimum wage and can not afford a childminder ( if you can get one at short notice ) or might have no relatives/friends able to care for the child.

 

I believe that most forward thinking companies recognise this and are helpful where they can be.

[bazak1]

this is true cal37, and fair play to them for being understanding. I think the post that stated that some employers say that illness is predictable has a fair point but to be honest , illness predictable. how,?

if your child/relative is ill for eg: on a weekend and then your phoned on a wednesday and told they're still no better, can you go immediately, then yes thats different.

but, how many of us have had children that you leave at school at 9am, only to be phoned at 11.30 and told that they are actually being sick or whatever. In the majority of cases, you have NO idea that they are ill, so how can you predict that you will need time off.

[honey5]

I work for the NHS! Obviously you cannot predict when a dependant is going to be ill but HR take the view that a dependant will be ill at some point so the employee should have a contingency plan so that they can still attend work.

I argued these policies (attendance and special leave) with the assistant director of HR and he was adament that they can discipline people for poor attendance regardless of reason, the special leave policy is designed to cover unforseeable events - he says a dependant being ill at some point is forseeable. He cited cases from ET where employee was sacked for failing to achieve 95% attendance and the dismissal was upheld.

Not saying I agree with this policy.

 

im not sure which trust you work for but i certainly know if i was employed by the same one i wouldnt have a job right now, i took 18 months off when the twins were born... all paid, then had to be in hospital with them at various different times during the next 4yrs,

the only thing the NHS can do is send you to Occ Health and if youre covered they dont have a leg to stand on FORTUNATELY

honey x

[morteee]

I think all employers in this day and age should be understanding where ill children are concerned.

 

Its easy for them to say get a relative/childminder to care for them. Many people are on nation minimum wage and can not afford a childminder ( if you can get one at short notice ) or might have no relatives/friends able to care for the child.

 

I believe that most forward thinking companies recognise this and are helpful where they can be.

 

 

well my parents work full time and my childminder wont have my son if he is ill in case he infects the other kids in her care, my friends all work full time and also have kids so wont be willing to look after a sick child either

 

and of course the most important point of all

 

if MY son is ill then I WANT to care for him myself! It was my choice to bring him into the world and it is MY responsibility to care for him and nurture him! I dont want some neighbor or stranger doing MY duties for me! (my childminder only has him for an hour after school anyway)

[morteee]

Good post morteee.

 

 

ta