Dependancy leave being threatened with dismissal

[crunchie153]

Hi,

This is my first post and hope you can help my husband works in a call centre and is in his probationary period his first 6 month period was extended due to taking two periods of sick and his next 6 months are up this week in this 6 month period he has had to take 3 period of dependancy leave we have 2 toddlers one of whom suffers from bronchialitas and is on inhalers and comes on very suddenly and he can be admitted to hospital with it, once he was off with this as one of us was at the hospital and the other had to look after our other toddler it was only 2 days in total, next I was placed on a very strong painkiller that made me incapable of looking after the children while I waited for surgery that was 1 day and this week me and both children came down with flu and the youngest also struggled with his breathing so again he had to take 2 days off to help me. We do not have any family to fall back on we are both only children and my parents are both deceased and his parents work.

When he returned to work last week he was called into a "investigation meeting" where they told my husband that they would be investigating his time off for dependancy before ending his probation at the conclusion of this meeting they decided to take it to a formal hearing which is tomorrow he will have been with the company 1 year on the 1st November at which they stated that one of the outcomes could be dismissal.

 

From my investigation I have discovered that their is no limit to time off for dependants and that this shouldnt be used as a reason to dismiss someone as he has never had more than 2 days and they stated quite clearly in his investigation that they have no issues with his work at all he has had no sick at all in this period of probation.

 

My questions are:

 

1/ Can he be fired for taking time off for dependants when no warnings have been given

2/ Can they bring the sickness from his first 6 months probation in as relevant in the new period of

probation as he has met the request to not take any time off for sickness.

3/ Will he be counted as being their a year on his 365th day if he is dismissed tomorrow for an unfair dismissal claim.

 

Thank you any help is gratefully received.

 

Lesley

[papasmurf1cx]

I think his service will be a year. They can dismiss for less than a year.

 

In any event it does sound unfair and possibly discriminatory. he could submit a grievance tomorrow stating that he feels that company inaction could be discriminatory due to Associated Disability Discrimination ie he is associated with a disabled person (baby on inhalers) and that any policies procedures etc should take this into account as he is needed for the needs of a disabled person. You may need proper legal advice on that but hopefully it will stop them in their track and get them to consider this before proceeding. he could then try and negotiate what is permissable in circumstances when he is urgently needed for baby's needs

[CONCILLIATOR]

His length of service + a minimum of one weeks' notice + accrued holiday entitlements will have got him safely over the one year threshold.

 

Dismissing him without following any sort of recognised disciplinary procedure is breach of contract, therefore unfair dismissal.

 

Failure to take account of his situation, especially when they were aware of it, would be discriminatory.

[becky2585]

Hello

 

Just to clarify, accrued holiday entitlement does NOT put you over the one year threshold for claiming unfair dismissal. It would not be counted under any circumstances.

 

However, if he has 51 weeks' service, he can bring a claim as the statutory notice period would push him to the 52 week mark. This means that if he was in the 51st week, he is probably safe.

 

He could potentially have a claim in any event as he is facing dismissal for asserting his statutory right to dependant leave. In addition, depending on the nature of the child's condition, it could also amount to disability discrimination by association. He is entitled to "reasonable time off", what is reasonable in the circumstances may depend, but unless there are other elements involved, it is likely that his absence was reasonable. I presume he followed the company's internal reporting procedures when taking this time off? If not, this could be a disciplinary offence in itself.

 

As he will have one year's service on 1 November, you could claim unfair dismissal. So in answer to your questions:

 

1. This is highly likely to be unfair.

2. Yes, they could do this, however if they are relying on this to dismiss him when they already agreed to discount this period, then arguably this is unfair also.

3. If he is dismissed, yes, he does still have the requisite length of service.

Best of luck.

[crunchie153]

Hi,

 

Well since I last posted my husband was dismissed on the 31st October his 365th day of working for company with one weeks notice. The reason they gave was that they did not feelwe had sufficent back up from family should my sons ilnness reoccur which seeing as its an ongoing thing would be likely. My parents have both passed away and my husbands work we are both only children so we do not have a huge network.

 

We have taken advice off a solicitor who said we have a very strong case for unfair dismissal under the associated disability act as my 2yr old is on inhalers for a reoccuring problem. We appealed the decision and my husband had his meeting a week ago he took with him a letter off our doctor stating that on the dates he was absent that it had been comnpletely neccesary for him to be a t home to help me as we have 2 toddlers so one of us at hospital and one at home with our other child. They adjourned the meeting to go away and do some investigating and its now been a week and we have heard nothing how long should we wait before we chase them up, I must add this isnt a small company this in one of the biggest private healthcare providers so you would think they would be a bit understanding!

 

We have followed everything to the letter in line with company procedure to ringing in and he was never off for more than 2 days just long enough to get my sons breathing and wheezing under control and then I took over sole care again usually with the help of the community nurses.

 

Any advice would be great.

 

Thanks Lesley

[papasmurf1cx]

They can take as long as they want, as they are a law unto themselves. Whether that is fair or lawful in another matter. If the company is large as you indicate then there should be a company policy indicating the time limits. Failing to follow those limits could in these circumstances be construed as victimisation.

 

They should take a 'reasonable' time, but what that is is a matter of interpretation.

 

have you actually instructed the solicitor now?

[crunchie153]

No we havent instructed the solicitor as yet we where waitingon the outcome of the appeal hearing they told us to come back to them should we not have any joy with the appeal!

My husband worked for [edit] so a very large organisation and in the notes he managed to get off the employee website it doesnt give timescales for hearings- Sorry just re read the notes it was under a differnet heading and for a dismissal hearing it says 5 working days which is today.

 

Do you think we should look at instructing a solicitor now or wait for them to get back to us with their investigation findings?

Edited December 13, 2011 by honeybee13
Firm's name.

[papasmurf1cx]

Give them an extra week to write, then write them a letter explaining that their delay could be construed as victimisation. In that letter give them a date to get back to you otherwise you may consider proceedings. Give enough rope = hang themselves, comes to mind.

[honeybee13]

Hello there.

 

I've taken the precaution of removing the company name as you're not exactly best friends with them. Companies have been known to check the forum and you don't really want to alert them to what you're doing.

 

My best, HB