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Practice dilemma: Domestic incident leave

One of your nurses has taken 10 days of domestic incident leave in the past year, each time giving very little notice and leaving you short staffed. Is there anything you can do?

One of your nurses has taken 10 days of domestic incident leave in the past year, each time giving very little notice and leaving you short staffed. Is there anything you can do?

Employees are entitled to a reasonable amount of unpaid time off in the event of genuine emergencies involving their dependants and, although 10 days is a lot in a year, if she falls within the rules then there is little you can do.

Having said that, the right to domestic incident leave only relates to dependants (which is limited to a spouse or civil partner, parent, child, or someone who lives in the same household who is not a lodger, tenant, boarder or employee) and only applies in the following specific situations:

• To provide assistance if a dependant falls ill, gives birth, is injured or assaulted

• To make care arrangements for the provision of care for a dependant who is ill or injured

• In consequence of the death of a dependant

• To deal with the unexpected disruption, termination or breakdown of arrangements for the care of a dependant

• To deal with an unexpected incident which involves the employee's child during school (or another educational establishment's) hours

The emergency leave rules do not apply in other situations and also do not cover planned time off to care for dependants e.g. to take them to a planned medical appointment.

The right to take leave is also dependent on the emergency being both unexpected and necessary for time off. It would also be expected for the absence to be reported in a specific way.

You should have a meeting with the employee, on a semi-formal basis, to establish the reason for her repeated absence. If there is a pattern to her reasons for absence (e.g. childcare falling through) then arguably it is no longer unexpected if it were to happen again and therefore she would not be entitled to emergency leave on another occurrence.

She should be encouraged to have back up plans in place in the event of further incidences so that it does not affect her work, and informed that a further absence for the same reason will not be treated as domestic incident leave.

Having said that, any subsequent incidences should be treated with caution and she should not be disciplined for taking the time off if it genuinely fits in with your policy on emergency leave. However, if you can find loopholes - such as the reason for absence not being for the care of a dependent, not being one of the limited specific emergencies, not being unexpected or necessary or her failing to comply with any reporting requirements - then starting disciplinary action would be appropriate.

Alison Graham is a healthcare employment lawyer at Veale Wasbrough Vizards.

Alison Graham is a healthcare employment lawyer at Veale Wasbrough Vizards

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