So Tired - Put in a grievance and now sacked.

[teaboy2]

Re: So tired.

Section 4 and 5 (you don't have to be a legal guardian) - “dependant” includes, in addition to the persons mentioned in subsection (3), any person who reasonably relies on the employee - i.e Any person ranging from a grand child needing hospital treatment or care, or old jack that has collapsed off a heart attack. "Dependents" can be any person who "depends" or is "dependent" on an employees care etc, whether its family or a stranger in need of first aid resulting in you being late for work or missing your bus/train and therefore having to take the day off as a direct result - section 4-5 protects employees in such circumstances where the person reasonably relying on the employee is not a dependent under section 3!

[jon1965]

Re: So tired.

Steve
As I was admitted after I started my exams , the diagnosis will be used in mitigation should I be borderline pass/fail however it is not overly relevant to the discussion.
I am afraid that my summary of business is that of capitalist society and not the only way a society can run. Hopefully in time capitalism will fall and a more equal society will be forged. maybe I should change my name to Wolfy (for those of a certain age)

[matt3942]

Re: So tired.

Hi [MENTION=19071]teaboy2[/MENTION] - I did say in one of my earlier posts that the grandchild would be a dependent if he/she reasonably relies on the employee; however, IMO this doesn't apply for two reasons:

1) The grandchild was not reasonably reliant on the employee; the grandchild and his/her mother were transported to hospital by ambulance; and
2) Even if the above was not true, the time off was not to care for the grandchild, it was because the employee was tired from the previous day (based on the information provided).

Good practice on the part of the employer would have been to offer compassionate leave; however, it is not obligated to do so. I think the employee would have a difficult time using S. 57A as a defence in this instance.

- Matt

[teaboy2]

Re: So tired.

@matt3942 - I wasn't responding directly to you, but purely in general since there was confusion as to how section 57A applied

op stated "On Tuesday my 17 month old grandaughter became very poorly and I took her to a&e Tuesday evening with breathing difficulties. She was then blue lighted to a hospital 26 miles away with her mum. Mum is a single parent and unable to drive. I followed them after I had got clothes for them both."

Daughter doesn't drive therefore likely relied on OP to collect them the Wednesday too!

So op took grandchild and daughter to hospital originally to the local A&E, only then was the child taken by ambulance to a different hospital where the op followed in the car as she had there clothes. Both the daughter and grand child were depending on her because the grand child was ill, therefore OP was providing assistance as per section 4(A)

At no point did the OP say in the same post that she was tired from the previous day, she was tired because she didn't get home till 2am add that to her medical issue a symptom of which is extreme tiredness. Time of for dependents is know as compassionate leave by the way!!

At the end of the day it depends on what each person defines as "reasonably relies".

[stevemLS]

Re: So tired.

I agree with Matt, however I think we risk having an "internal" debate to the detriment of OP?

For the avoidance of doubt, I think the employer should have granted (unpaid) compassionate leave i these circs.

Is there somewhere on the forum we can debate these tings without concerning posters?

[teaboy2]

Re: So tired.

Whilst i agree with you @stevemLS in regards to not wanting to distract from the OPs circumstances, i do however feel the OP is covered by section 57A and my reasoning for such may not only proof useful knowledge to the OP here but also to others reading this thread too.

I think the key point here that people have missed is the mother of the grand child being the OP's daughter, and the OP wasn't just taking time of as a result of providing assistance (taking to hospital) to both daughter and grand child, leading her to be tired (not forgetting her medical condition makes her feel tired at the best of times), but she is also entitled to time of for dependents (compassionate leave) to provide emotional support as well as assistants and in this case i would bet my bottom dime that her daughter needed the OP's support on an emotional level too, even on the following day.

Another key point is people treating time off for dependents and compassionate leave (and bereavement leave) as separate legal entitlements when they are in fact one and the same legal right. I really wish people wouldn't deem compassionate leave as separate from time off for dependents as there is no such thing named as compassionate leave in law. Its merely a contractual title that refers to the right to time off for dependents (so is bereavement leave) they appear as such in contracts where they state if such leave is paid or unpaid. Compassionate leave and bereavement leave is therefore just a contractual title reference to time off for dependents that merely references whether they will be paid and their entitlement to such leave, which is what covers the right to time off for dependents in the contract of employment, on either compassionate grounds or bereavement grounds. They are all one and the same! Hence why there is no separate legislation for compassionate leave or bereavement leave as they fall under section 57A of the legislation! So it makes no sense for someone to say section 57A doesn't apply or would be a weak defense and then say the employer should have given the OP time off for compassionate leave, when its section 57A that governs the right to time off under contractual compassionate leave! Acas also refer to Time of for dependents as compassionate leave!

Not only that how can an employer offer compassionate leave in the OP's circumstances, it was an emergency therefore the OP was only obliged to inform the employer as soon as possible to do so after the event that she would be taking time of for dependents. Which is what the OP did!

End of the day she should not have been spoken too in the way she was, as that was completely unfair and unreasonable behavior of the manager. And the OP should not be subject to such unfair treatment as a result of taking time of for dependents.

[matt3942]

Re: So tired.

I don't think anyone has missed the fact that the grandchild's mother is the OP's daughter; however, the OP's daughter does not quality as a dependant for the purpose of S. 57A as she had not fallen ill, given birth, or been injured or assaulted. Also, it's unlikely an ET would find the grandchild was a dependant because 1) the child's mother was present, and 2) not being able to drive does not typically make you reasonably reliant on someone for the purpose of S. 57A.

Even if the grandchild was found to be a dependant, S. 57A cannot be applied retrospectively, i.e. the OP cannot request time off work (under S. 57A) on one day as a result of being tired from the previous day's events. This Section is intended to provide a short-term solution to an immediate crisis, after which alternative arrangements for taking leave should be agreed with the employer. Also, (and for this reason), S. 57A does not extend to providing emotional support after the fact.

In response to your quote - "At no point did the OP say in the same post that she was tired from the previous day, she was tired because she didn't get home till 2am add that to her medical issue a symptom of which is extreme tiredness." - this is a different way of saying the same thing; the OP was tired from being at the hospital the previous day, from which she did not return home until 2AM. While I appreciate the OP's medical condition may have exacerbated the tiredness, this is irrelevant when considering S. 57A. In this instance it would have been more appropriate to refer to the Equality Act 2010.

Also, while people often refer to Time Off for Dependants (S. 57A) as 'Compassionate Leave', they are not the same thing. S. 57A is a statutory right, which may be applied only in specific circumstances, whereas compassionate leave is an organisational policy, which may be applied at the employer's discretion where other types of leave are not applicable.

The bottom line is it's very unlikely an ET would apply S. 57A in this instance.

I would also like to add that while I may not appear compassionate, my purpose here is to outline the legal arguments objectively.

- Matt

[Tired123]

Re: So tired.

Thanks all for your posts. Has made interesting reading.
My line manager not up to speed on such things - last year when my father in law died, whilst we were on holiday. Never took any bereavement leave but was made to take an annual leave day for the funeral. New manager above the line manager has given us all staff handbooks and guess what? I was entitled to bereavement leave. They also pride themselves as being family friendly.
Submitting a letter with all the points you have been able to help me with this week.
am very grateful to you all as was about ready to quit my job and end this career altogether.
regards
tired

[teaboy2]

Re: So tired.

I don't think anyone has missed the fact that the grandchild's mother is the OP's daughter; however, the OP's daughter does not quality as a dependant for the purpose of S. 57A as she had not fallen ill, given birth, or been injured or assaulted. Also, it's unlikely an ET would find the grandchild was a dependant because 1) the child's mother was present, and 2) not being able to drive does not typically make you reasonably reliant on someone for the purpose of S. 57A.

Even if the grandchild was found to be a dependant, S. 57A cannot be applied retrospectively, i.e. the OP cannot request time off work (under S. 57A) on one day as a result of being tired from the previous day's events. This Section is intended to provide a short-term solution to an immediate crisis, after which alternative arrangements for taking leave should be agreed with the employer. Also, (and for this reason), S. 57A does not extend to providing emotional support after the fact.

In response to your quote - "At no point did the OP say in the same post that she was tired from the previous day, she was tired because she didn't get home till 2am add that to her medical issue a symptom of which is extreme tiredness." - this is a different way of saying the same thing; the OP was tired from being at the hospital the previous day, from which she did not return home until 2AM. While I appreciate the OP's medical condition may have exacerbated the tiredness, this is irrelevant when considering S. 57A. In this instance it would have been more appropriate to refer to the Equality Act 2010.

Also, while people often refer to Time Off for Dependants (S. 57A) as 'Compassionate Leave', they are not the same thing. S. 57A is a statutory right, which may be applied only in specific circumstances, whereas compassionate leave is an organisational policy, which may be applied at the employer's discretion where other types of leave are not applicable.

The bottom line is it's very unlikely an ET would apply S. 57A in this instance.

I would also like to add that while I may not appear compassionate, my purpose here is to outline the legal arguments objectively.

- Matt

Well i totally disagree with you. Section 57A does allow time of to provide emotional support for a dependent, any other form of compassionate leave in non emergency or in unforeseen circumstances is contractual only - Which i stated before, as compassionate leave is merely a title in contract, so its not only to cover your statutory rights but to also includes details as to what the employer would deem reasonable grounds in addition to those under the section 57A and what they would deem reasonable duration of such leave which varies per employer - Hence why some employers give you 1 day of bereavement leave and most give you 3 days and while some will allow you a minimum of 2-3 days compassionate leave and others will give you as long as you reasonably need!

The equality act would not come into play here as it was the circumstances of the night before that made her more tired than usual, not her condition par se! The OP could have gone out clubbing or to the pub the night before and been just as tired when she got home at 2am - Would the equality act cover her then? No it wouldn't and it doesn't here either!! Not only that but shes not been treated less favorably because of her medical condition to anyone else, so its not a case of discrimination anyway! She was victimised by the manager for taking time off for dependents not discriminated against because of her medical condition!

Not only would the OP need to provide emotional support to her daughter in such terrible circumstances, but she would also need to provide her daughter assistance too in regards to travel, clothing, not necessarily just on the night in question but the following day also if the child was kept in hospital which i assume the child was.

Ohh and by the way, a dependent can be a grandchild (Even the government says a grand child is classed as a dependent) and on that night the child relied on the OP to get them to the hospital (assistance in providing them care) as well as the daughter relying on the OP for emotional support (care) as her mental state of mind would have been all over the place in such circumstances, and provide the daughter assistance in caring for the child as well - https://www.gov.uk/time-off-for-dependants/your-rights

Your also failing to consider what would be a reasonable amount of time off given the circumstances, taking the following day of to recover and also likely provide further support to the mother and child, would mean taking the following day off would fall in to the reasonable amount of time off category as it certainly would not be unreasonable to take said day off in the circumstances. To say the legislation doesn't apply retrospectively is completely wrong, as it does apply retrospectively, as it allows you to simply notify the employee as soon as its reasonably possible to do so, i doubt the OP could do that at 2am in the morning or whilst at the hospital as her priority would have been to her daughter and grand child at the time and dealing with the circumstances, and i doubt her manager would have been up at 2am, meaning the that calling before her shift started the following time was perfectly reasonable in terms of informing the employer as soon as reasonably possible to do so!!

So am sorry Matt but i totally disagree with you!

[matt3942]

Re: So tired.

Hi [MENTION=19071]teaboy2[/MENTION] - you are entitled to disagree with me but it seems you have totally misunderstood the purpose and meaning of S. 57A. Frankly everything you have written in your last post is a muddled interpretation of the employer's legal obligation under this Section.

I have no intention of continuing to argue this point with you, and I would advise the OP to approach your advice with caution.

- Matt

[teaboy2]

Re: So tired.

Muddled interpretation - Sorry but i think its your interpretation that is wrong its section 57A that gives you the right to compassionate/bereavement leave. Without section 57A we'd have no such thing as compassionate/bereavement leave as there would be no such right to time of in such circumstances!! And we would all be disciplined for taking unauthorised absence without the protection of section 57A in such circumstances!

As for "approach my advice with caution" - Well i advise the OP to do the same for your advise in this case, as shes not protected under the Equality Act 2010 for taking the day off!

At the end of the day her managers comments on her return to work were nothing more than demeaning and reference her taking the day off as time off for dependents, it may well likely constitute victimization but those comments were certainly not discriminatory (In regards to her disability). The comments were merely unfair treatment for taking the day off as per her right to do so under section 57A.

The best thing the OP can do here is simply forget about it and look at having her hours reduced further to help her with her condition, which she has already been given advice on earlier anyway!

By the way, just because the OP's daughter hadn't fallen ill, given birth or been assault, she still qualifies as a dependent under subsection 6 which includes mental illness - Emotional distress or a lapse in mental capacity to cope, which are deemed as a mental illness even if it may only be temporary - Even the government agrees as its states here under Illness, Injury or Assualt:

This includes mental or physical illnesses that don’t have to be life-threatening or need full-time care - it could be an existing condition that has worsened.

For example, if a dependant is mugged without being physically hurt, you could take time off to comfort or help them.

You can also take time off to arrange longer term care for a dependant.

So basically the OP was entitled to time off under section 57a to comfort her daughter and help her and her grandchild during the emergency situation! So i rest me case - Whether you agree or not is up to you as frankly i don't care if you do or not. But just because you don't agree it does not give you the right to to advise people to approach my advise with caution!! Or are you seriously saying that both i and the government who made the legislation are wrong!

[jon1965]

Re: So tired.

The whole discussion involves on the definition of depandant. I would suggest that under normal circumstances an adult child living away from home is not one. If there are details that are not obvious maybe the OPs daughter is a dependant . I would suggest the OP takes it on the chin.

[matt3942]

Re: So tired.

I agree entirely with [MENTION=32643]jon1965[/MENTION]

- Matt

[matt3942]

Re: So tired.

[MENTION=19071]teaboy2[/MENTION] - I'm saying your interpretation of the legislation is wrong. Neither the grandchild nor daughter are dependants for the purpose of S. 57A.

The example you used applies only because the dependant was mugged. If the dependant's child had been mugged, you would not normally be legally entitled to time off under S. 57A.

Emotional distress does not qualify as a mental illness unless it's a symptom of an underlying condition.

Time off to arrange long term care for a dependant is a right afforded by S. 57A. Note the term 'arrange', i.e. you are entitled to take time off to make arrangements, but not to provide long term care.

I referred to the Equality Act because the OP's tiredness is a symptom of her disability, so the employer may have been unreasonable in not allowing the day off.

Again, S. 57A is a statutory right, which applies in specific circumstances. Compassionate leave is an organisational policy (sometimes a contractual right), which the employer can use at its discretion to give time off where other types of leave, including that provided by S. 57A, are not appropriate. They are not the same.

I suspect we shall have to agree to disagree.

- Matt

[teaboy2]

Re: So tired.

@teaboy2 - I'm saying your interpretation of the legislation is wrong. Neither the grandchild nor daughter are dependants for the purpose of S. 57A.

The example you used applies only because the dependant was mugged. If the dependant's child had been mugged, you would not normally be legally entitled to time off under S. 57A. - Dependent is a close relative i.e. spouse, sibling, parent, child (doesn't matter if they live with you or if the child is an adult there still the child of the employee)

Emotional distress does not qualify as a mental illness unless it's a symptom of an underlying condition. - So what does one suffer when mugged if not distress/panic/anxiety - And that example was given by the government not myself! The point was the government agrees that she would be allowed time of to comfort and help her daughter when in distress - And i can not see how the thought of potentially loosing ones child is any lesser than distress caused by being a victim of a mugger where one was not physically injured!

Time off to arrange long term care for a dependant is a right afforded by S. 57A. Note the term 'arrange', i.e. you are entitled to take time off to make arrangements, but not to provide long term care. - I don't dispute that, but section 57A affords employees the right to take time of in emergency situations involving dependents or person living with them or reasonably rely on the Employee (such as an elderly neighbor). Section 57A gives you the right to time to in emergency situations too and to deal with the aftermath even if that means recovering from the exhaustion or strain it has put on you or you dependent!

I referred to the Equality Act because the OP's tiredness is a symptom of her disability, so the employer may have been unreasonable in not allowing the day off. - But her reason for being to tired to go to work was not due to her disability on that day, it was due to the events of the previous night! So no she can not rely on the equality act as a result of those mitigating circumstances - As i said before it would be no different to going to the pub and not getting home to 2am and then ringing up to say your too tired to go to work today - She wouldn't be able to rely on the equality act for that nor can she in light off the actual events - Her time off was granted under her right to time off for dependents due to the circumstances! In any event they did allow her the day off, it was the managers comments upon the OPs return to work that were unreasonable and amounted to unfair treatment in light of the circumstances!

Again, S. 57A is a statutory right, which applies in specific circumstances. Compassionate leave is an organisational policy (sometimes a contractual right), which the employer can use at its discretion to give time off where other types of leave, including that provided by S. 57A, are not appropriate. They are not the same.

No they are the same! compassionate leave is merely a contractual title to the contractual term that allows employees time off for dependents, yes they may set out specific terms in regards to there own policy in addition to the satutory requirements under section 57A, but ultimately section 57A sets out bear minimum and enforces such rights, same for bereavement leave terms in contracts. Section 57a is the legal authority in regards to terms in your contract regarding compassionate leave and bereavement leave. Some employers simply refer to the term as Time off For dependents in the contract as the title for the term, others use Compassionate leave and bereavement leave either under one term or as separate terms! Without section 57A you would not have such terms in the contract unless the employer had such a policy for them, but because we have section 57A thats the sole and only reason why you have said terms in all employment contracts - Because it is a statutory right, just like sick pay is (though company sick pay is an organisational policy to pay more, but it still can not be less than the statutory requirements regarding sick pay)

I suspect we shall have to agree to disagree. - Agreed

- Matt

See above in red!