Employment Solicitor Chris Dobbs outlines some key considerations for employers to try and limit the risk of hybrid working disputes and claims
School Closures: What If Employees Can’t Work?
We are now in the third national lockdown since the covid-19 pandemic started and the Prime Minister’s announcement earlier this week certainly felt like we had turned the calendars back to March 2020.
Balancing working from home and childcare
The biggest announcement in many ways was the closure of schools and this raises significant concerns for parents and employers alike as millions are faced with the dilemma of needing to provide childcare but also facing work commitments. The General Secretary of the Trades Union Congress, Frances O’Grady, said of closures that:
“Without further action, many will have no choice but to cut their hours or take unpaid leave from work”.
Unfortunately, she’s absolutely right. There is no automatic right available to working parents for any form of paid leave or extra entitlement simply because their children are no longer in school.
The TUC suggest that employers should do all they can to support working parents but, of course, many businesses are already struggling with the pressures of the pandemic and paying people not to be at work is simply not an option.
So, what can you do to help support working parents during this time?
Speak to them
This seems obvious but the first step is to speak to affected parents and identify the precise problem.
For many, it will be the need to have someone at home to care for children during the hours they would usually be in school. A discussion will identify the problem more quickly than waiting for it to become an issue and this can be a useful fact-finding opportunity to help figure out solutions your employees may not themselves have considered.
Check your business and the employee’s role - are they critical workers?
If your employees count as critical workers, Government guidelines provide for in-school education. The guidance states that ‘children with at least one parent or carer who is a critical worker can go to school or college if required’. There is no requirement for both parents to be critical workers and the list of what jobs qualify is comprehensive. Of course, if it possible for a child to not be in school the best option is for them not to be, but you should check this position if there is no alternative.
Explore Working from Home Options
This will vary hugely from business to business and even between different roles and individual circumstances. There is a significant difference between whether someone can in theory work from home and whether their circumstances allow them to do so. Do not assume that just because a role is primarily desk-based, for example, that an employee will definitely be able to fulfil it from home.
If you are going to have staff working from home, you should consider having a policy in place. You can read my article on how to write a working from home policy here.
Consider leave options
No form of leave other than full paid is going to be ideal for the employees concerned and understand very few businesses can afford to do this even if they wanted to. It may be an option for some parents to use some of their annual leave if no other option is available. However, this will not be a solution to the two month closure which is looking likely and it is far from ideal for the employee to use the majority of their annual leave in January for childcare purposes.
Unpaid leave is an option. This can be voluntary on your/their part, or taken as part of the statutory entitlement for emergency childcare reasons. The school closures will almost certainly qualify for the emergency element but, again, a long period of unpaid leave is unlikely to be sustainable.
Changes to working hours
This could be a temporary and voluntary arrangement agreed between you and the employee. It may be an option to amend working hours so that they and a partner or other carer can work around each other to cover the primary care needs of the child concerned. Ensure that anything agreed is put in writing as a formal variation to the employee’s contract, however.
Your employee may also decide to make a formal, statutory flexible working request. Providing they meet the criteria, this does have to be considered properly and while it can be refused, you will need to give a specific reason for doing so within the law.
Can you furlough staff if they need to provide childcare?
Yes. Furlough is still an option under the Government’s Job Retention Scheme. Subject to the scheme rules, employees who require a period of absence for childcare reasons could be furloughed and this is the suggestion being made by trade unions. It may not be appropriate in all circumstances, including your current business situation, and you should not assume that all parents in this situation will want to be furloughed.
Working From Home and Childcare - A solicitor's view
This full lockdown came at very short notice and the school closures in particular were a complete last-minute U-turn. For the next week or so, there will be immediate concern, confusion and panic for businesses but also for parents and families. A calm approach, carefully planned, will help all concerned to ensure that a solution can be found for as many people as possible.
If any claims arise as a result of not providing some kind of leave for childcare, employers are going to have to show that they have acted reasonably in the circumstances in whatever action they have taken. This does mean providing employees with the opportunity to make suggestions, considering them, and ultimately trying to identify solutions but it does not have to be at the expense of the business.
Businesses should, as always, be mindful of the risk of falling foul of discrimination claims which can be difficult in childcare matters. There is always scope for creative solutions and a one-size-fits-all approaches may not always work.
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