I need time off for my son's operation: ask the expert

I have been employed with my company for over two years.  I work 70% which is 5 days on and 5 days off on a rolling pattern.  I do not work set hours as I work for an airline as cabin crew.  My 16-year-old son suffers from obstructive sleep apnea and requires his large tonsils and adenoids to be removed.  He requires an overnight stay as a minimum for his operation.  Post surgery he will require a lot of care as this is crucial to his speedy recovery and operation success.  It is a major operation for a person of his age. I informed my employer as soon as we got an operation date and asked to swap fixed days off.  My company says that I cannot swap as they are short of staff at our airport base.  I asked if I could use my annual leave.  They have not allowed me to do this either.  They will not give me three unpaid days as that is too much.  They have allowed me two dependant days and if I desperately need it I can have another day, but I can only ask for this the day before. Dependant days are also unpaid.  My husband works overseas and cannot be home at this time. I am worried sick regarding this operation and I cannot even think of the prospect of going to work whilst my son is at home alone and in pain and requiring medication regularly. I am worried that he requires me to be at home with him if there are complications post surgery and my employer requires me to work.  Their reasoning for not allowing me to swap or move leave is that it would leave the base short and they would have to nightstop a crew member from another base to cover for me.  Please advise me on my rights.

Tracey Guest

Answer by Tracey Guest

When a dependant (such as your child) requires your care and alternative arrangements cannot be made then you are permitted a reasonable amount of time off to care for your dependant. In your case your husband is away and your child is unwell. Your child cannot therefore be left alone, he cannot go to school and someone needs to care for him at home. By law you are therefore entitled to a reasonable amount of time off work to care for him. The time off is, however, unpaid. Your employer has allowed two days so far and will allow a third day if you call on the day to say he needs you. If therefore your son still needs your care on the third day you need to call your employer and say you are unable to come into work. If your employer refuses or you are penalised for taking this time off you would have a claim for sex discrimination and you could choose to resign and claim constructive unfair dismissal.
If you want to try and arrange to have this day off in advance, then perhaps the GP could write a note stating that your son will need your care for the full 3 days. It would then be very difficult for your employer to refuse. You could also raise a written grievance about the way you are being treated.

In relation to not being allowed to swap your shifts or holidays, your employer appears to have good business reasons for not allowing this. However, if they usually let people swap when this would leave the base short, then the only reason they are not letting you swap would be due to your childcare issues. Again, this could be seen as discriminatory and could be grounds for a claim for sex discrimination. The other odd point is that you have to take this time off and they have already agreed to you having two days off, so why not allow this to be taken as holiday? It means that you would have less time off overall during the year. Again, if the reason they are being difficult with you is due to your childcare, then this is sex discrimination. Again, you could raise a written grievance and allege this. They may then decide to allow you to take the time as holiday.

Tracey Guest is head of employment and a partner at Slater Heelis in Manchester. She specialises in employment law and is also a working mum. Sarah Calderwood has assisted with this answer. 

Related tags: Dependant care leave | Sex discrimination

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