# Force Majeure Dispute



## DWK (5 Mar 2013)

My son recently had an operation which the consultant said was necessary. I had to be present to sign consent forms, bring him. There and bring him home (it was day surgery, but general anEsthetic required). I tried to take this day as force Majeure but employer said ad it was planned operation I couldn't. I looked through the legislation and it doesn't refer to planned/unplanned. The criteria are based on urgency, the person and indespensibility all of which I feel I satisfy. Does anyone have any knowledge ad to whether I am entitled to this or not?


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## dereko1969 (5 Mar 2013)

My understanding, based on civil service experience, is that it's only supposed to be used where someone has no annual leave left *and* in emergency situations, not where it is foreseen which it seems to have been in your case. I'd agree with your employer.


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## chrisboy (5 Mar 2013)

dereko1969 said:


> My understanding, based on civil service experience, is that it's only supposed to be used where someone has no annual leave left *and* in emergency situations, not where it is foreseen which it seems to have been in your case. I'd agree with your employer.



Id agree with this.


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## tallpaul (5 Mar 2013)

Yes, to claim Force Majuere leave, the issue MUST have arisen suddenly AND your presence was indispensible. Therefore, as an example, if your child needed an operation for an appendectomy whereby the symptoms manifested themselves quickly, then the taking of Force Majeure for the first day would be acceptable. (If you needed to take additional days to help a recuperating child, then leave would be required as, by definition, the issue has not arisen suddenly on second or subsequent days). 

In the case of a pre-arranged operation as you describe, your employer is entirely corrrect in their interpretation.


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## oldnick (5 Mar 2013)

I had a few travel agencies, each with 3/4 staff.  An unplanned absence always caused a problem  especially in the busy period.

But I could never imagine refusing a day off to an employee, whose child was undergoing an operation, regardless as to whether time off was due or not.


Although technically /legally correct the employer seems a bit of a ....


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## Purple (5 Mar 2013)

+1 oldnick, seems very heartless.


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## geri (5 Mar 2013)

I don't think the OP said they were refused a day off, rather that they were not allowed to take it as force majure.


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## wbbs (5 Mar 2013)

I don't imagine most employers would refuse the day off but they would expect it to be taken out of annual leave.  Having said that I knew someone whose doctor always gave them a cert when their child was ill so they could just take sick leave.


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## Purple (5 Mar 2013)

wbbs said:


> I don't imagine most employers would refuse the day off but they would expect it to be taken out of annual leave.  Having said that I knew someone whose doctor always gave them a cert when their child was ill so they could just take sick leave.



That doctor is guilty of fraud and should be struck off.
They would alos be liable for the cost of sick pay for every person they assisted to steal from their employer.


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## gianni (5 Mar 2013)

dereko1969 said:


> My understanding, based on civil service experience, is that it's only supposed to be used where someone has no annual leave left *and* in emergency situations, not where it is foreseen which it seems to have been in your case. I'd agree with your employer.



Civil service force majeure does not require the employee to have no Annual Leave left. However it does need to be an emergency/unforseen situation. An elective surgery clearly doesn't fulfill this criteria.


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## dereko1969 (6 Mar 2013)

gianni said:


> Civil service force majeure does not require the employee to have no Annual Leave left. However it does need to be an emergency/unforseen situation. An elective surgery clearly doesn't fulfill this criteria.


 
Sorry you're right. However, as a manager in the civil service, depending on the situation and the person involved, I'd look for annual leave to be used first if it was someone who was known to habitually use up their FM leave. Thankfully I've never had a colleague try this on but I have had colleagues in the past who would count FM as part of their annual leave!

Civil Service circular here
[broken link removed]


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## primrose (6 Mar 2013)

There are a lot of events where the parents presence is indispensible, but in this case the urgency of the parent to drop everything so they are present is the issue. For an elective procedure one has ability to plan time off.

 As this procedure was planned I do not see how one could assume that the FM days could be disputed as it was not an emergency or an unforseen situation. The OP should use their annual holidays to covertheir absense.


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## DWK (6 Mar 2013)

The operation was not elective, it was non-elective surgery.


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## huskerdu (6 Mar 2013)

DWK said:


> The operation was not elective, it was non-elective surgery.



It all hinges on the amount of notice from being told that he needed surgery to the surgery taking place.


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## terrysgirl33 (7 Mar 2013)

DWK said:


> The operation was not elective, it was non-elective surgery.



"Elective" means that it was planned in advance, not that it was a choice to have it or not.  Did you go to an appointment with the consultant to be told that the surgery had to take place that day, when you weren't expecting it?  Or were you told that the surgery was scheduled for the future?


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## Leper (8 Mar 2013)

During my days in the public service Force Mejeure conditions demanded that a Doctor's Certificate endorsing the suddenness and flare-up condition leading to the leave.  Obviously, the certificate was provided after the event.  Then, if the Force Mejeure conditions were agreed or not a decision was made whether to impose annual leave or run with Force Mejeure.

From memory 3 days annually obtained in the case of Force Mejeure.

The like of my wife got the flu, my child is crying, my father fell off his bike, the child must be collected from school, I must attend a funeral, etc were not entertained.


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