Can I be disciplined if my childcare breaks down?

Can I receive a warning or dismissal for having time off to look after my children? My mother is my childcare, but she was unable to have my childen for one week to go on holiday which she booked last minute. I asked work for parental leave within the right amount of time – 21 days – but it was refused. I had then told work I had no other means of childcare. I’ve no other family and I cannot afford to pay for childcare. I was told they would get back to me, but they did not so I took the week off and called in to say I would not be in, but now they are talking about disciplinary procedures.

I will need to make a number of assumptions in order to answer your question as there are some elements of missing information that I would normally request when dealing with a query such as this.

I assume that your employer works on the standard statutory parental leave provisions and there have not been any changes made by way of a business specific policy. I also assume that you have not taken any parental leave before and therefore the four weeks maximum parental leave in a set 12-month period does not come into play, and that you have provided any evidence requested by your employer to establish your entitlement to parental leave.

An employer has a right to postpone a request for parental leave (unless the employee is seeking to take parental leave immediately on the birth or adoption of a child but that is not the case for
you). The postponement can be for up to six months from the beginning of the period when the employee originally wanted to take the leave. I will assume that your employer did not seek to postpone your parental leave, but instead simply refused it altogether.

When an employee is prevented from taking parental leave they may be able to make a complaint to the Employment Tribunal (ET) within three months. However, in your case you did in fact take the time off and therefore the question for you is more what can be done in the event that your employer takes disciplinary actions against you.

An employee should not suffer any detriment for taking or seeking to take parental leave. This means that as a starting point you should not be subject to any disciplinary procedure as a result of taking the leave.

A possible problem for you, however, is that the employee must make it clear that they are relying on the right to take parental leave and if they have not done so they are not protected from any detriment. I do not know the full circumstances to be able to advise you as to whether this is something that is an issue for you. It could also be argued that you should have taken action when the leave was refused, if necessary by going through the ACAS early conciliation process required prior to making an ET application, rather than just taking the time off.

In practical terms, if your employer is talking about taking disciplinary procedures against you, you should raise with them your right to parental leave and that you should not suffer any detriment as a result of doing so and that a disciplinary action against you would be a detriment that you would consider taking a case to the ET on. If they persist you should take further advice at that point. It would be likely to be wise to raise a grievance at that stage.

If the issue of emergency childcare is something that remains an issue into the future then mediation might be a way of negotiating an agreement between you and your employer.

Abigail Oprey is a lawyer at The Legal Partners.





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