Advice

We’ve had a spate of enquiries this month about dealing with an employee who keeps taking time off to look after their child. Short term, no notice absenteeism is a really difficult issue for employers to cope with. It affects planned work, it affects other team members and it can affect customers. It can be very frustrating especially if it happens a lot.

It’s important to remember that your employee has a contract of employment with you. That contract of employment will usually say how many hours a week that they are contracted to attend work. There’s an obligation on both sides here. You as the employer need to provide the hours of paid work that you’ve contracted with your employee. Your employee needs to attend work for the hours that they’ve signed to do, unless they’ve agreed to take annual leave or in some other way agreed to a change. An employee who frequently fails to be available to carry out their contracted hours can be accused of “frustrating” the contract of employment.

Frustration of contract can lead employers to a decision to terminate the employment relationship. This kind of decision needs care.

The law

Parental Leave

Parental leave can be used by parents to spend more time with their young families. It’s not leave that’s designed for emergency use. Parental Leave is planned. It can only be used in blocks of one week at a time (unless the employee’s child has a disability), it is unpaid and is a maximum of 18 weeks’ until the child turns 18. You cannot unreasonably refuse an employee parental leave. We’ve seen Parental Leave applications where an employee’s child minder is away on holiday in the summer and the employee has no other child care.  There’s more about Parental Leave here.

Emergency Leave

Emergency Leave is for just that, an emergency. It’s not restricted to emergencies involving children though. It covers any dependant. Emergency Leave is unpaid, unless you as the employer choose to pay the employee.  There’s no definition of an “emergency” or the time off that you deem it reasonable within which the employee deal with the emergency. For example, someone called away to collect their child from school who has fallen ill would likely be deemed an emergency at the time they are responding to the call. You can give them the time off without pay for the rest of the day to deal with the emergency. If the child remains ill the following day, is it still an emergency? Possibly, possibly not.

You’ve got some flexibility in how you respond to this. You may agree to the employee taking a second day as holiday so that your employee can care for their child or you may allow a second day of emergency unpaid leave. If the child is likely to be ill longer than a couple of days it may be that you consider asking the employee to take Parental Leave to deal with the issue. There’s more about Emergency Leave here.

The “How” of dealing with an employee who keeps taking time off to look after their child

1. Check your policies are up to date and relevant to your organisation. Check your
   1. Holiday Policy
   2. Sickness Absence Policy / Attendance Policy
   3. Disciplinary Policy and Procedure
   4. Parental Leave Policy and your Emergency Leave Policy
2. Communicate your policies to all your employees
3. Train your managers and supervisors on the policies and how they should be applied
4. Record decisions taken on requests for leave

Frequently Asked Questions on the issue of dealing with an employee who keeps taking time off to look after their child

My child is ill today can I take a day’s leave?

• Check your annual leave policy. What does it say about notification of requests for annual leave? If you require an amount of notice and the employee isn’t complying you can refuse the request and ask that they take it unpaid. If they have a reasonable amount of leave to use up, it can be a practical response to allow them to paid holiday.
• Check your Emergency Leave Policy. Do you deem this an emergency if the employee has no one else to care for the sick child?

My child is ill today, I’m going to take a day’s sick leave.

• We would discourage this kind of request and not recommend that you grant sick leave when an employee is not sick. Sick leave is for employee’s who are unfit to attend work because they are ill.  Check out (1) above, suggest they take a day’s paid leave or a day’s unpaid leave. Consider whether it is Emergency Leave.
• Some employees will of course not tell you that they are phoning in sick because they’re looking after their child, they’ll simply phone in sick. There’s little you can do in this situation unless you can confidently prove that they are abusing the sickness policy by taking sick leave when they’re not sick. Record the absence as “sick”. Get them to fill in a self-certification form when they return to work identifying what their illness was. Monitor their sickness absence in line with your policy.

Your employee’s record suggests that they are taking too much time off caring for their child

• This needs some delicacy in approach but we have some facts to discuss with the employee
  • their contracted hours
  • their attendance record which may mean that they are not routinely fulfilling their contracted hours
  • the impact on their work of their short notice absence
  • the impact on their colleagues
• A discussion about improvements that you require the employee to put in place to reach the standard that you require in their attendance record. It is not your place as the employer to be questioning the employee’s child care arrangements. Focussing on their record of attendance and how it differs from what they are contracted to deliver is key.
• This is the employee’s problem to solve, not yours. It’s the employee’s responsibility to get themselves to work and carry out the hours that they are contracted to deliver.
• Speaking to the employee about changes that could be made to their contract to benefit both you and them can help. For example, changing hours of work/days of work. These should be agreed changes, not imposed changes!
• Set targets for improvement and monitor the employee’s attendance pattern.
• If there’s no improvement, call us. You are about to consider more serious steps that need professional advice if you are to protect yourself from a challenge by your employee.

If you have a problem dealing with an employee who keeps taking time off to look after their child call us now on 01706 565332 for an initial confidential consultation or email us and we’ll arrange a time to call you.

Metis HR is a professional HR Consultancy based in the North West of England supporting clients across the country. We specialise in providing outsourced HR services to small and medium-sized businesses. Call us now on 01706 565332 to discuss how we may help you.