Force Majeure Leave

M

mutleybear

Guest
Applied for this as was out of work for three days with a sick child
Was told today that my employer is only going to pay one day of the three because they deem that I could have made other arrangements for someone else to mind the child

The Gp had requested that the child be kept out of the creche for the three days and gave a cert for me stating that I could not work due to illness of my child

No relations available to mind the child

I have emailed an enquiry to the Equality Board

Can the employer do this ?
 
That's my understanding of how force majure should apply. It should just be for days when you have to drop everything and run with no notice, relative in a car accicent or child sick suddenly, something of that nature. It's not for days after the emergency, when you'll have had at least one day to make some arrangements.

That's how we apply it in work in circumstances like yours, the expectation would be that paid or unpaid leave would be used to cover the two next days.
 


Same where I work. IF force majeure didn't exist you would have had to take unpaid or annual leave.

Your child minding arrangments are of no concern to your employer.
 
I think it might depend on the illness of the child. Some illness'es you can't just drop on someone else. There doesn't seem to be hard rule about this. So the type of illness, and what the note from the doctor actually says might be all important.
 
becky said:
Same where I work. IF force majeure didn't exist you would have had to take unpaid or annual leave.

Your child minding arrangments are of no concern to your employer.
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I work in HR & that's how I apply force majeure. The first dayI'd allow as FM but the other days would have to come out of your annual leave.
 
Force Majeure Leave
This is paid leave which arises when injury or illness of a close relative (as specified in the act) makes the immediate presence of the employee indispensable.
Maximum allowance is three days in one year or five days over three consecutive years. Part of a day is counted as a full day.
All employment rights are protected during force majeure leave.

Personally I would insist on getting the three days and appeal if necessary.
 
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No.

The whole point of FM is to cover an issue that has arisen suddenly and where presence is indispensible. How can the care of a child arise 'suddenly' on the second or subsequent days?? It is up to people to cover such absences by other means.

Force Majeure, by definition, can only be taken one day (or part of a day) at a time.
 
It doesn't state anywhere in those links complainer anything about consecutive days. So I would think FM only covers the first day.
 

'Suddenly' is not expressly mentioned in Section 13 of the Parental Leave Act but Force Majeure has been adjudicated on at various Rights Commissioner hearings. The essence of these decisions is that the three key elements of ‘urgent’, ‘immediate’, ‘indispensible’ need to be satisfied for FM to be given.

Accordingly, these three criteria for Force Majeure must apply on each individual day for which FM is requested (and not just the first day). It is not tenable to suggest that while an issue that arises can continue to be 'urgent' and someone's role is 'indispensible', the claim would fall on the 'immediate' requirment. By definition something cannot be 'immediate' after a period of time has elapsed!

For this reason subsequent days are not allowed and where 'suddenly' comes into the equation..
 
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dereko1969 said:
It doesn't state anywhere in those links complainer anything about consecutive days. So I would think FM only covers the first day.
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Sorry, you're right. I misread that in the rush.


Just to be clear, Paul - when you say 'it is not tenable', is this your view or the Rights Commissioners view or what?

For parents of a young child with an illness, it may well be just as difficult to arrange alternative cover on day 2 or day 3 as it is on day 1. Some people have family around to support situations like this. Some people don't.
 
Complainer said:
For parents of a young child with an illness, it may well be just as difficult to arrange alternative cover on day 2 or day 3 as it is on day 1. Some people have family around to support situations like this. Some people don't.
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Dont disagree with this but in the case of someone who doesnt have family around to support such situations should they not be taking those days as holidays or unpaid leave?
 
truthseeker said:
Dont disagree with this but in the case of someone who doesnt have family around to support such situations should they not be taking those days as holidays or unpaid leave?
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I agree - unpaid leave or holidays if agreed with employers. Force Majeure is for unexpected events that prevent you going to work on a particular day. Abuse of this valuable facility should be actively discouraged!
 

That's the gist of Rights Commissioner rulings as I understand them but is my own wording.

Unfortunately, the care of children on second or third day and who can or cannot mind them is irrelevant as far as Force Majeure is concerned. FM is not meant to be used for such purposes.

I come back to my previous point, day 2 or day 3 is not and cannot be 'immediate'.
 

The Rights Commissioners have also said in relation to FM, that they can apply a "reasonably subjective test" to issues and as a result on occassions, have given 3 days where an employer only agreed 1. They have defined "immediate" as something which happens after work finished the previous day and have made specific references to issues regarding single parents and the additional difficulties they face in attending an emergency. Hence a very rigid black and white rule by an employer may not neccessarily be approved by a Rights Commissioner
 
truthseeker said:
Dont disagree with this but in the case of someone who doesnt have family around to support such situations should they not be taking those days as holidays or unpaid leave?
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Why? It is the same problem as day 1? Why is this not force majeure?

Maggs065 said:
I agree - unpaid leave or holidays if agreed with employers. Force Majeure is for unexpected events that prevent you going to work on a particular day. Abuse of this valuable facility should be actively discouraged!
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I disagree that this constitutes abuse. A problem with a sick child (for example) is still a problem on day 2 or day 3.


Thanks for the clarifications.
 
Complainer said:
Why? It is the same problem as day 1? Why is this not force majeure?
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Because by day 2 and 3 you have had time to make alternative arrangements, its not the employers issue if you do not have family or friends to make those arrangements with.
 
Sometimes only a parent can look after a sick child. Depending on their age, they might need to be comforted/hugged a lot.

For example, we had to spend 3 days in hostpital with our 14 month old. There was no way anyone else should be looking after our baby in such circumstances. That is an extreme example, but there are varying degrees of sickness.

In relation to the Rights Commissioner's opinion - was that opinion expressed explicitly in relation to a sick child? I doubt it. I have seen cases where people have attempted to take FM due to the death of an aunt or an uncle, which may be what the Rights Commissioner was referring to.

In relation to this being deemed "annual leave", I do not think that it correct. The essence behind annual leave is to entitle the worker to a holiday or recuperation. Looking after a sick child is hardly a break. In the long run, this serves neither the employer nor the employee.

In relation to the OP's question, I would ask whether it was serious enough that you had to look after your child for the full three days? Was it possible that your partner/spouse could have shared the burden? Was there nobody else that could help?

I think it's a parent's judgment of whether someone else can look after them. I don't think HR staff would have enough information or experience on child care to make an informed judgment.

If you disagree with the HR dept., then push back on them, and use your internal appeals process. It should be no big deal really, unless you're doing this every other week.
 
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