High Court of Ireland Decisions

1. In this case the Plaintiff is a single mother caring for an eight year old child. On the 11th of June 1999 she took leave to look after her sick child. In her evidence before the Tribunal the Plaintiff said that she did not come to work on the 11th of June 1999 as her eight year old child was sick. During the very early morning she noticed that she was sick and she did not know if she had a temperature. When she got up for work she noticed that the child had a rash on her two legs and she decided to stay at home and observe her. The rash was getting worse and she took her to the doctor three miles away. The Plaintiff lived alone eighteen to twenty miles from Mullingar (the place of her employment). The doctor advised her to get calomine lotion and to keep an eye on her daughter. She then had to travel ten miles to a chemist in Ballymahon. She felt it was best to stay with her child that day and that her presence was indispensable.

2. During cross examination the Plaintiff said that between twelve o’clock and six a.m. she had been concerned about her child. She said she would not be in a position herself to diagnose whether her condition might be serious. When she made a claim the management requested a medical certificate. This was not a requirement under the Parental Leave (notice of force majeure leave) Regulations 1998 (S.I. 454 of 1998).

3. For the employer the plant manager told the Tribunal that he did not believe a rash could be termed immediate and indispensable (sic) rather it is normal in bringing up children. When the Plaintiff applied for the leave four days later she knew it was a minor ailment and there was no mention of the fact that she thought of meningitis.

4. In its determination the Tribunal accepted that the Applicant was concerned about her child’s health on the 11th of June 1999 and became aware very early in the morning that her daughter was sick.

5. The Tribunal by a majority (with Mr Paul Clark dissenting) determined that the particulars of this case did not fall within the meaning of the Act as urgent, immediate and indispensable. In his dissenting opinion Mr Clark said that the Company’s refusal to grant paid parental leave in this case was based on the fact that following an examination by her G.P. the child was diagnosed as having a rash which was not serious. In his view this was tantamount to saying that parents must be equipped with the same level of medical knowledge as a medically qualified person before making a decision to stay with a sick child and derive the benefit of the legislation. He said that the Company stated they took no issue with the Plaintiff arising from her absence from work on that day but that their objection was to paying her for the day. Since there was no contention by the Company that the Plaintiff was in any way abusing the situation and since there were limitations placed on employees seeking relief, he felt the conclusions arrived at by his colleagues were somewhat restrictive in the particular circumstances. Accordingly he found that the Plaintiff was entitled to one day of paid force majeure leave for Friday 11 June 1999.

6. While it is not spelt out in the determination of the Tribunal it seems clear that the reason the force majeure leave was refused was that the rash turned out to be not serious. In my opinion the Tribunal should not have approached the matter on that basis. This was judging with hindsight the urgency of the family reasons and the question of whether the employee’s presence with her child was indispensable. The matter should have been looked at from the Plaintiff’s point of view at the time the decision was made not to go to work. Also the Plaintiff could not be assumed to have medical knowledge which she did not possess.

7. The Defendants did not contest the matter and did not appear in Court.

8. In my opinion it was a mistake of law to decide the issue on the basis of the ultimate outcome of the illness in this case.

9. Accordingly the Plaintiff is entitled to one day of paid force majeure leave for Friday 11 June 1999. She is also entitled to her costs.