Joint time off refused: ask the expert

My husband and I both work for my parents. I have asked if we can have a morning off as my seven-year-old daughter has a hospital appointment. We are in the process of trying to get a diagnosis for her as she has behaviour and social communication difficulties.  For the last 2 / 3 appointments I have had to go alone. I have offered to take the time off unpaid or use one of our floating days. My father became hostile and said we would  have to wait, depending what work we have on as there has been a bit of down time with the factory floor not having much work to do. He has refused us both having the same day off. Can he do this and keep doing it? I would like to know what our rights are.

I sympathise with your situation which is further complicated by having parents as your employers. I am going to focus on your legal rights and not how you are going to approach this with family members.

You have not explained the nature of both of your jobs and your working hours – are you both full–time/part-time? Do you have senior roles in the business requiring your constant attendance at the business? Are there any other married/civil partnership couples working in the business who are treated the same way? Finally, what is a floating day?

I am going to focus on holiday entitlements and potential claims arising out of not receiving holiday entitlement. I do, however think you need to obtain formal advice as you may qualify for other types of time off such as Parental Leave or Dependent Leave but your eligibility will be based on your and your daughter’s specific circumstances.

Assuming that there is no Health and Safety or other requirement (statutory or contractual) requiring one of you to be on site during working hours, how much holiday you get and how you take it is usually set out in your respective contracts of employment.

There is a minimum legal entitlement to holiday under the Working Time Regulations 1998 (WTR) of 5.6 weeks or 28 days for full-time employees. Bank and Public holidays can be included in the legal minimum entitlement. Part-time employees are given the pro-rata equivalent. Your employer cannot give you less than the legal minimum in your contracts of employment.

If you have no contract of employment then you will also be subject to the notification requirements to take time off under the WTR. Unfortunately under the WTR, your employers can control when you can take your holiday.

You must give your employers advance notice that you want to take holiday. This notice should be at least twice as long as the amount of holiday you want to take. In your case you want to take a morning off on 25 May so you and your husband needed to give at least one day’s notice- you gave six. Unfortunately, your employers/parents can refuse permission for your holiday as long as they give you notice which is at least as long as the holiday requested. So to refuse your request for your morning off, they would have to give you at least a half day’s notice. They refused on the same day as your request which again is six day’s notice.

If, your employers consistently refuse to allow yourself and your husband to take your annual leave entitlement you may be able to make a claim at the Employment Tribunal for a “declaration” that your employers refused to allow you to exercise your annual leave entitlement under the WTR. Tribunals can also make an award, based on what is “just and equitable in all the circumstances”. There is also a possible victimisation claim as a result of being subjected to a detriment (or disadvantage) because you were unable to take your leave together to attend your daughter’s medical appointments. This could include being unfairly dismissed.

Tribunals can award whatever they think is appropriate, including an injury to feelings award and aggravated damages.

It is possible that you are both being treated unfairly for a discriminatory reason. If your daughter is classified as having a “disability” as defined in the Equality Act 2010 then you may have disability discrimination claims by your association to her as her parent carers and the detrimental treatment you are receiving. You need to seek formal advice to ascertain whether this is the case based on your facts. You may also have a claim for unfair treatment by reason of your marital status, another potential type of discrimination claim.

Again, you need to seek advice based on the facts of your case and how to approach this based on your family connections.





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