Fair? Given a Written Warning and Pay Withheld for Stay in Neonatal Intensive Care (NICU)

randomname01

Hi, 

So I am just getting others perspectives and opinions on my current matter of which all are appreciated.

I had a baby born this year who had serious health complications which meant that they were in NICU for 80 days. During this time there were many intense periods of surgeries, scans, procedures and medical training. During this time my mother in law also passed away suddenly.

I used the remainder of my holiday leave and spoke to work about how I could work around hospital but ultimately I ended up going off sick with stress. I was in hospital every day and my wife was in no fit state with all the events, she ran a business but had put that on hold.

My situation I'm posting about is that when I eventually returned to work I attended an absence review which is standard policy after a long term absence. The HR advisors decision at the end of this meeting was found to be to upgrade from an absence review to a written warning, the result of this also meant I lost my annual increase.

I appealed the decision but ultimately the head of HR backed the senior HR advisor in his decision citing my absence had a impact on the business. My boss who I have a great relationship with had managed to move or cover my workload in my absence with a part time member of staff having been given additional hours to fill the gaps so I refuse to agree with this argument. Especially as some of my absence was on our off season where it is often very quiet at work. I've worked here a long time but we all were pushed to the bottom of our pay spines over COVID as part of a pay grading restructure hence my position on pay.

I want to continue to work here due to my relationship with my boss and team regardless of the harsh treatment from HR (which have a bad reputation here).

Do I consider taking this further to get an impartial unbiased appeal or suck it up to ensure I don't burn any bridges?

My argument is that I had measures applied that were more punitive than standard policy and that this was an extremely hard time in my life which I wouldn't wish for any father to experience. 

Thanks in advance for any opinions and advice,

Cheers.

Tucosalamanca

How long were you absent from work, what happened with pay over this period?

I ended up going off sick with stress 
Were you signed off by doctors and able to provide sick notes?

Was the absence authorised or did you simply say that you wouldn't be in for personal reasons?
Ultimately, even the most understanding employer is going to raise an eyebrow at 80 days compassionate leave.

Without doubt, you've had a hard time, but from an employer's perspective, some of the things you've mentioned wouldn't warrant leave from work.
Mother in law passing, your partner's business affairs are of no concern to your employer. These are everyday issues that people routinely deal with.
Unless you had spare leave available to take, many employers would only allow a few hours off to attend the funeral.

At first glance, I don't think the employer has been unreasonable but without more information, it's hard to say...

Undervalued

randomname01 said:

Hi, 

So I am just getting others perspectives and opinions on my current matter of which all are appreciated.

I had a baby born this year who had serious health complications which meant that they were in NICU for 80 days. During this time there were many intense periods of surgeries, scans, procedures and medical training. During this time my mother in law also passed away suddenly.

I used the remainder of my holiday leave and spoke to work about how I could work around hospital but ultimately I ended up going off sick with stress. I was in hospital every day and my wife was in no fit state with all the events, she ran a business but had put that on hold.

My situation I'm posting about is that when I eventually returned to work I attended an absence review which is standard policy after a long term absence. The HR advisors decision at the end of this meeting was found to be to upgrade from an absence review to a written warning, the result of this also meant I lost my annual increase.

I appealed the decision but ultimately the head of HR backed the senior HR advisor in his decision citing my absence had a impact on the business. My boss who I have a great relationship with had managed to move or cover my workload in my absence with a part time member of staff having been given additional hours to fill the gaps so I refuse to agree with this argument. Especially as some of my absence was on our off season where it is often very quiet at work. I've worked here a long time but we all were pushed to the bottom of our pay spines over COVID as part of a pay grading restructure hence my position on pay.

I want to continue to work here due to my relationship with my boss and team regardless of the harsh treatment from HR (which have a bad reputation here).

Do I consider taking this further to get an impartial unbiased appeal or suck it up to ensure I don't burn any bridges?

My argument is that I had measures applied that were more punitive than standard policy and that this was an extremely hard time in my life which I wouldn't wish for any father to experience. 

Thanks in advance for any opinions and advice,

Cheers.

Unless your firm has an internal policy to allow a further appeal there is nowhere further you can take this.

You cannot go to an employment tribunal regarding a written warning.

Much as I sympathise about the personal circumstances very few employers would be as accommodating as yours have been. 

Many people are surprised to learn that there is no legal right to compassionate leave. Obviously it would be a rare and heartless employer that doesn't allow at least some and many do far more but ultimately it is at their discretion.

There are certain legal rights to unpaid leave if a dependent needs care but, taken literally, a seriously ill child in hospital is being professionally cared for so it doesn't apply unless the employer so chooses.

When you say "I had measures applied that were more punitive than standard policy" how are you judging that? If the firm didn't meet its hard and fast contractual obligations then maybe. However virtually all such policies are discretionary, as are most company sick pay schemes these days.

Your doctor is the only person to assess your medical condition and the appropriate response. However it has to be said in such circumstances the doctor may well judge that it would be best for your health, in an ideal world, to be signed off sick. However that can easily lead to problems a little further down the line as has happened here.

DullGreyGuy

randomname01 said:

I had a baby born this year who had serious health complications which meant that they were in NICU for 80 days. During this time there were many intense periods of surgeries, scans, procedures and medical training. During this time my mother in law also passed away suddenly.

I used the remainder of my holiday leave and spoke to work about how I could work around hospital but ultimately I ended up going off sick with stress. I was in hospital every day and my wife was in no fit state with all the events, she ran a business but had put that on hold.

Sounds a horrible time but these things often come down to facts... 

Were the complications known about before the birth? ie was there time to plan?

https://www.gov.uk/time-off-for-dependants

As noted above you do have the right to time off to deal with an emergency but per the above it's a bit fuzzy. Kid falls off his bike you can take time off to take him to A&E but you decide to let him stay at home for 2 weeks before going back to school you wouldn't be entitled to take that time off as an emergency as likewise you couldn't take his follow up appointment with the fracture clinic as an emergency as you know in advance about it. 

Emergency dependent leave doesn't have to be paid. 

How many days holiday did you take?
Were the surgeries, scans etc planned in or all emergencies? 
Your wife "not being in a fit state" is going to be debatable as ordinarily you wouldn't have both parents on emergency leave.
Did you advise inline with policy for every absence or were you simply a no show sometimes?

You said you talked about "WFH" but then you went off sick... did they say no and you then went sick, which look dodgy to anyone or were they still considering it or had they already said yes?

Were you paid for all this time off?

You cannot contest a written warning externally so if you have come to the end of the internal process there is no where else you can go. Compared to some companies it sounds like they were far from the worst, certainly some would have said no to emergency holiday and so your non-attendance would have been gross misconduct. 

Nothanks

Fair? Not particularly. 

Lawful? Quite probably. 

Are there loads of worse employers? Definitely. 

It’s crap and I’m so sorry you and yours have had such a hard time but my advice is keep your head down and crack on if enjoy the job. 

Undervalued

^^^^^^^^ Exactly this.

I had intended to add a paragraph to my earlier post to say much the same thing!

TELLIT01

DullGreyGuy said:

Your wife "not being in a fit state" is going to be debatable as ordinarily you wouldn't have both parents on emergency leave.

My nephew's son was born prematurely and was extremely ill for several weeks.  There was no way his wife would leave the hospital and she lost a lot of weight in those weeks through the stress.  He did try going to work but (a) couldn't concentrate and (b) was sitting up at night so his wife could get sleep.  I frankly find that comment pretty distasteful.

Cobbler_tone

I must be the only one who works for a good, large, professional firm. One I’ve been at for 30 years. I also have a keen interest and tons of experience in employee/industrial relations.
As with most things it depends on the full story but….

- The OP has used annual leave, demonstrating a willingness to exhaust his options.

- Emergency dependent care is a legal right. The employer doesn’t have to pay for it but most would.

- The OP talks about his own absence for stress. If certified and reported correctly he would get up to 6 months company sick pay with us and face no action when returning…subject to other previous occasions of absence. Following a very difficult time or a close bereavement it is pretty common for an individual to become poorly and be signed off.

- ‘HR’ wouldn’t carry out our disciplinary procedures. That would be down to management. In my book managers should manage their people. 

- Doesn’t matter if an illness seems ‘dodgy’, if it is certified by a GP, specialist or occ health then a line manager or HR isn’t qualified to challenge, regardless if it followed a request for leave.

The order I would manage someone:
1. Emergency leave, maximum couple of days whilst arrangements are made.
2. Potential of adjusted hours on a time limited basis, recorded via flexible working request.
3. Short notice holiday requests.
4. Unpaid leave

By the time you reach 4. the person has often been signed off.

I personally think it would extremely harsh to receive a warning for the story outlined in isolation but suspect there may be more to it than meets the eye.

P.S. I have dismissed around a dozen people in my time using a fair and robust absence management policy and suspended many more from the company sick pay scheme, which is the biggest motivation to get someone back to work!

randomname01

Thanks for the responses everyone, while some of them are perhaps a little blunt/cold I can understand the view points and comments and it is what I asked for. I am starting to come to the acceptance that while not sympathetic from my employer that I will have to settle for the situation. On a positive as someone who manages others I feel I will be far more sympathetic and supportive to others knowing how hard it can be. Having known of people using fit notes to potentially shirk work I maybe had a negative bias. This has somewhat opened my eyes.

There is a neonatal law coming into effect April which I think highlights how traumatic an event like this is but I missed out unfortunately but I am happy others in the future will get access to support.

Just to tie up questions above,

I was offered some flexibility but ultimately my job couldn't be done at hospital.

We knew of potential complications but we're told most likely days to a few weeks (not 80 days).

I was paid for sick leave with a fit note from the GP. (Not the entire 80 days due to leave)

Our HR department are not known for being great and while I have been here I have seen all sorts of bias, bullying and canvassing but I appreciate there will always be a worse employer out there.

I'm happy my stint in hospital is over however and I am back enjoying work (much easier than being an at home carer).

TELLIT01 thanks for the support, I think it's one of the situations you cannot really understand until you or someone experiences it.

Once again thank you for the advice everyone and have a good Xmas,

Cheers

General_Grant

Cobbler_tone said:

. . . . 

- Doesn’t matter if an illness seems ‘dodgy’, if it is certified by a GP, specialist or occ health then a line manager or HR isn’t qualified to challenge, regardless if it followed a request for leave.

. . . .

However if an employer does suspect a member of staff is malingering, they could ask for another medical assessment in order to challenge the entitlement to sick leave.  They would need clear evidence in order not to pay SSP.

Cobbler_tone

General_Grant said:

Cobbler_tone said:

. . . . 

- Doesn’t matter if an illness seems ‘dodgy’, if it is certified by a GP, specialist or occ health then a line manager or HR isn’t qualified to challenge, regardless if it followed a request for leave.

. . . .

However if an employer does suspect a member of staff is malingering, they could ask for another medical assessment in order to challenge the entitlement to sick leave.  They would need clear evidence in order not to pay SSP.

The kind of companies being mentioned on here wouldn't have the resources or inclination to go to those lengths. They'd probably just sack them without following the proper processes.

Back in the day we used to have private 'detectives' following people who were off on 'dodgy' sick leave! Those days are long gone.
Even the classic 'bad back' is hard to prove. You can have reports of people doing all sorts of activities but you will struggle to get any evidence to say it is not a part of their recovery or a different activity to work. e.g. we had someone off with a back issue who regularly played golf. We got no where with the specialist and occupational health who said it helped his mobility but was unable to do his full manual role. I'm not a fan of messing around with 'light duties' for more than a 4 week period. In my experience occupational health are the source of a lot of issues in terms of effectively managing people back to work. Plus they are terrified of ending up in a tribunal.