# Force Majeure Leave



## mutleybear (5 Mar 2010)

Applied for this as was out of work for three days with a sick child
Was told today that my employer is only going to pay one day of the three because they deem that I could have made other arrangements for someone else to mind the child 

The Gp had requested that the child be kept out of the creche for the three days and gave a cert for me stating that I could not work due to illness of my child 

No relations available to mind the child 

I have emailed an enquiry to the Equality Board 

Can the employer do this ?


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## circle (5 Mar 2010)

That's my understanding of how force majure should apply. It should just be for days when you have to drop everything and run with no notice, relative in a car accicent or child sick suddenly, something of that nature. It's not for days after the emergency, when you'll have had at least one day to make some arrangements.

That's how we apply it in work in circumstances like yours, the expectation would be that paid or unpaid leave would be used to cover the two next days.


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## becky (5 Mar 2010)

circle said:


> That's my understanding of how force majure should apply. It should just be for days when you have to drop everything and run with no notice, relative in a car accicent or child sick suddenly, something of that nature. It's not for days after the emergency, when you'll have had at least one day to make some arrangements.
> 
> That's how we apply it in work in circumstances like yours, the expectation would be that paid or unpaid leave would be used to cover the two next days.


 

Same where I work.  IF force majeure didn't exist you would have had to take unpaid or annual leave.

Your child minding arrangments are of no concern to your employer.


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## mutleybear (5 Mar 2010)

Thank you for your replies


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## AlbacoreA (5 Mar 2010)

I think it might depend on the illness of the child. Some illness'es you can't just drop on someone else. There doesn't seem to be hard rule about this. So the type of illness, and what the note from the doctor actually says might be all important.


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## batty (6 Mar 2010)

becky said:


> Same where I work. IF force majeure didn't exist you would have had to take unpaid or annual leave.
> 
> Your child minding arrangments are of no concern to your employer.


 

I work in HR & that's how I apply force majeure.  The first dayI'd allow as FM but the other days would have to come out of your annual leave.


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## theresa1 (10 Dec 2010)

*Force Majeure Leave*
This is paid leave which arises when injury or illness of a close relative (as specified in the act) makes the immediate presence of the employee *indispensable*.
Maximum allowance is three days in one year or five days over three consecutive years. Part of a day is counted as a full day.
All employment rights are protected during force majeure leave.

Personally I would insist on getting the three days and appeal if necessary.


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## tallpaul (10 Dec 2010)

theresa1 said:


> *Force Majeure Leave*
> This is paid leave which arises when injury or illness of a close relative (as specified in the act) makes the immediate presence of the employee *indispensable*.
> Maximum allowance is three days in one year or five days over three consecutive years. Part of a day is counted as a full day.
> All employment rights are protected during force majeure leave.
> ...


 
No.

The whole point of FM is to cover an issue that has arisen suddenly and where presence is indispensible. How can the care of a child arise 'suddenly' on the second or subsequent days?? It is up to people to cover such absences by other means.

Force Majeure, by definition, can only be taken one day (or part of a day) at a time.


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## Complainer (10 Dec 2010)

Tall paul - Is this 'suddenly' requirement part of the law? I don't see any mention of it http://www.equality.ie/index.asp?locID=22&docID=-1 or http://www.citizensinformation.ie/e...ve_and_holidays/types_of_leave_from_work.html. Indeed, the legislation specifically states a maximum of three consecutive days, so why you ruling out consecutive days?


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## dereko1969 (10 Dec 2010)

It doesn't state anywhere in those links complainer anything about consecutive days. So I would think FM only covers the first day.


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## tallpaul (10 Dec 2010)

Complainer said:


> Tall paul - Is this 'suddenly' requirement part of the law? I don't see any mention of it http://www.equality.ie/index.asp?locID=22&docID=-1 or http://www.citizensinformation.ie/e...ve_and_holidays/types_of_leave_from_work.html. Indeed, the legislation specifically states a maximum of three consecutive days, so why you ruling out consecutive days?


 
'Suddenly' is not expressly mentioned in Section 13 of the Parental Leave Act but Force Majeure has been adjudicated on at various Rights Commissioner hearings. The essence of these decisions is that the three key elements of ‘urgent’, ‘immediate’, ‘indispensible’ need to be satisfied for FM to be given. 

Accordingly, these three criteria for Force Majeure must apply on each individual day for which FM is requested (and not just the first day). It is not tenable to suggest that while an issue that arises can continue to be 'urgent' and someone's role is 'indispensible', the claim would fall on the 'immediate' requirment. By definition something cannot be 'immediate' after a period of time has elapsed!

For this reason subsequent days are not allowed and where 'suddenly' comes into the equation..


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## Complainer (10 Dec 2010)

dereko1969 said:


> It doesn't state anywhere in those links complainer anything about consecutive days. So I would think FM only covers the first day.


Sorry, you're right. I misread that in the rush.




tallpaul said:


> Accordingly, these three criteria for Force Majeure must apply on each individual day for which FM is requested (and not just the first day). It is not tenable to suggest that while an issue that arises can continue to be 'urgent' and someone's role is 'indispensible', the claim would fall on the 'immediate' requirment. By definition something cannot be 'immediate' after a period of time has elapsed!
> 
> For this reason subsequent days are not allowed and where 'suddenly' comes into the equation..


Just to be clear, Paul - when you say 'it is not tenable', is this your view or the Rights Commissioners view or what?

For parents of a young child with an illness, it may well be just as difficult to arrange alternative cover on day 2 or day 3 as it is on day 1. Some people have family around to support situations like this. Some people don't.


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## truthseeker (10 Dec 2010)

Complainer said:


> For parents of a young child with an illness, it may well be just as difficult to arrange alternative cover on day 2 or day 3 as it is on day 1. Some people have family around to support situations like this. Some people don't.


 
Dont disagree with this but in the case of someone who doesnt have family around to support such situations should they not be taking those days as holidays or unpaid leave?


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## Maggs065 (10 Dec 2010)

truthseeker said:


> Dont disagree with this but in the case of someone who doesnt have family around to support such situations should they not be taking those days as holidays or unpaid leave?


 
I agree - unpaid leave or holidays if agreed with employers. Force Majeure is for unexpected events that prevent you going to work on a particular day. Abuse of this valuable facility should be actively discouraged!


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## tallpaul (10 Dec 2010)

Complainer said:


> Sorry, you're right. I misread that in the rush.
> 
> 
> 
> ...


 
That's the gist of Rights Commissioner rulings as I understand them but is my own wording.

Unfortunately, the care of children on second or third day and who can or cannot mind them is irrelevant as far as Force Majeure is concerned. FM is not meant to be used for such purposes. 

I come back to my previous point, day 2 or day 3 is not and cannot be 'immediate'.


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## Mpsox (10 Dec 2010)

tallpaul said:


> 'Suddenly' is not expressly mentioned in Section 13 of the Parental Leave Act but Force Majeure has been adjudicated on at various Rights Commissioner hearings. The essence of these decisions is that the three key elements of ‘urgent’, ‘immediate’, ‘indispensible’ need to be satisfied for FM to be given.
> 
> Accordingly, these three criteria for Force Majeure must apply on each individual day for which FM is requested (and not just the first day). It is not tenable to suggest that while an issue that arises can continue to be 'urgent' and someone's role is 'indispensible', the claim would fall on the 'immediate' requirment. By definition something cannot be 'immediate' after a period of time has elapsed!
> 
> For this reason subsequent days are not allowed and where 'suddenly' comes into the equation..


 
The Rights Commissioners have also said in relation to FM, that they can apply a "reasonably subjective test" to issues and as a result on occassions, have given 3 days where an employer only agreed 1. They have defined "immediate" as something which happens after work finished the previous day and have made specific references to issues regarding single parents and the additional difficulties they face in attending an emergency. Hence a very rigid black and white rule by an employer may not neccessarily be approved by a Rights Commissioner


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## Complainer (10 Dec 2010)

truthseeker said:


> Dont disagree with this but in the case of someone who doesnt have family around to support such situations should they not be taking those days as holidays or unpaid leave?



Why? It is the same problem as day 1? Why is this not force majeure?



Maggs065 said:


> I agree - unpaid leave or holidays if agreed with employers. Force Majeure is for unexpected events that prevent you going to work on a particular day. Abuse of this valuable facility should be actively discouraged!



I disagree that this constitutes abuse. A problem with a sick child (for example) is still a problem on day 2 or day 3.



tallpaul said:


> That's the gist of Rights Commissioner rulings as I understand them but is my own wording.
> 
> Unfortunately, the care of children on second or third day and who can or cannot mind them is irrelevant as far as Force Majeure is concerned. FM is not meant to be used for such purposes.
> 
> I come back to my previous point, day 2 or day 3 is not and cannot be 'immediate'.



Thanks for the clarifications.


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## DB74 (10 Dec 2010)

Complainer said:


> Why? It is the same problem as day 1? Why is this not force majeure?


 
It's not immediate as tallpaul clarified above


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## truthseeker (10 Dec 2010)

Complainer said:


> Why? It is the same problem as day 1? Why is this not force majeure?


 
Because by day 2 and 3 you have had time to make alternative arrangements, its not the employers issue if you do not have family or friends to make those arrangements with.


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## Bob_tg (10 Dec 2010)

Sometimes only a parent can look after a sick child. Depending on their age, they might need to be comforted/hugged a lot. 

For example, we had to spend 3 days in hostpital with our 14 month old. There was no way anyone else should be looking after our baby in such circumstances. That is an extreme example, but there are varying degrees of sickness.

In relation to the Rights Commissioner's opinion - was that opinion expressed explicitly in relation to a sick child? I doubt it. I have seen cases where people have attempted to take FM due to the death of an aunt or an uncle, which may be what the Rights Commissioner was referring to.

In relation to this being deemed "annual leave", I do not think that it correct. The essence behind annual leave is to entitle the worker to a holiday or recuperation. Looking after a sick child is hardly a break. In the long run, this serves neither the employer nor the employee.

In relation to the OP's question, I would ask whether it was serious enough that you had to look after your child for the full three days? Was it possible that your partner/spouse could have shared the burden? Was there nobody else that could help? 

I think it's a parent's judgment of whether someone else can look after them. I don't think HR staff would have enough information or experience on child care to make an informed judgment.

If you disagree with the HR dept., then push back on them, and use your internal appeals process. It should be no big deal really, unless you're doing this every other week.


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## Complainer (10 Dec 2010)

DB74 said:


> It's not immediate as tallpaul clarified above






truthseeker said:


> Because by day 2 and 3 you have had time to make alternative arrangements, its not the employers issue if you do not have family or friends to make those arrangements with.



Indeed, but that doesn't mean that alternatives are possible and realistic. There are times when a parent just has to be with a child, or with an older relative.




Bob_tg said:


> If you disagree with the HR dept., then push back on them, and use your internal appeals process. It should be no big deal really, unless you're doing this every other week.


You won't be doing it every other week - the legislation allows for 3 days in any month and five days in every three years.


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## truthseeker (10 Dec 2010)

Complainer said:


> Indeed, but that doesn't mean that alternatives are possible and realistic. There are times when a parent just has to be with a child, or with an older relative.


 
Which is why you should use paid or unpaid leave and not FM.


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## Complainer (10 Dec 2010)

truthseeker said:


> Which is why you should use paid or unpaid leave and not FM.


There is no entitlement to unpaid leave, and paid leave is generally by arragement with the employer. It is also not really the purpose of holidays, as Bob has pointed out.

This is 'force majeure' leave, not 'force urgence' leave.


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## liaconn (10 Dec 2010)

Lots of people have to use up some of their annual leave allowance for non holiday type stuff eg attending funerals, bringing elderly parents to hospital appointments.

Force majeure is intended for sudden, unexpected events. Obviously, if someone has a seriously ill child in hospital any reasonable boss would be as flexible as possible but they are not covered by force majeure for the duration.


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## DB74 (10 Dec 2010)

Complainer said:


> Indeed, but that doesn't mean that alternatives are possible and realistic. There are times when a parent just has to be with a child, or with an older relative.


 
I'm not arguing the rights or wrongs of it, just that it couldn't be classed as immediate IMO thereby disallowing the claiming of force majure leave


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## Bob_tg (10 Dec 2010)

DB74 said:


> I'm not arguing the rights or wrongs of it, just that it couldn't be classed as immediate IMO thereby disallowing the claiming of force majure leave


 
I do not think this would be the opinion of a "reasonable" employer.  I can't think of anything more immediate/urgent or important than having to look after a sick child.  It's taking a week off for an aunt's funeral that has caused employers to be cautious - I don't know who drafted the legislation but I'm sure it was meant to cover a sick child in the absence of any other available carer.


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## becky (10 Dec 2010)

We use to give 3 days in a row and only give one at a time - the employee is then expected to make other arrangements, use A/L or take unpaid leave.  

When that leave was first introduced, it was without a doubt one of the most used form of leave in our workplace, much more so than parental leave.  It was 3 days one year and 2 the next year and strangely enough in a lot of cases no more leave was needed.


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## NickyK (10 Dec 2010)

It is possible to get FM for three consecutive days. I've done it. My partner had a collapsed lung earlier in the year. I applied for three days and was told I could have one and take two days leave. My HR department had brought out an employee manual which had their own take on the law. The word "Suddenly" magically appeared and "Indespinsable" disappeared.

I got the exact wording from the Cit Advice website and wrote a letter to HR explaining their interpretation was incorrect and that I wished them to reconsider. I had three days FM within an hour.


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## Bob_tg (10 Dec 2010)

Let's remember that HR depts are not always unbiased !!


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## theresa1 (10 Dec 2010)

NickyK said:


> It is possible to get FM for three consecutive days. I've done it. My partner had a collapsed lung earlier in the year. I applied for three days and was told I could have one and take two days leave. My HR department had brought out an employee manual which had their own take on the law. The word "Suddenly" magically appeared and "Indespinsable" disappeared.
> 
> I got the exact wording from the Cit Advice website and wrote a letter to HR explaining their interpretation was incorrect and that I wished them to reconsider. I had three days FM within an hour.


 

- Well done Nicky.


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