28 January 2021 #Employment
At the start of this lockdown, we discussed the Government’s expansion of the furlough scheme to allow employers to furlough those who cannot work due to caring responsibilities (which includes looking after children who would otherwise be in school).
Despite this extension of the scheme, research by the Trade Union Congress (or TUC) has found that many employers are not making use of this option.
In its poll of 50,000 working mothers between 5 – 8 January, 3,100 responded that they had asked their employer to put them on furlough. Of those who had requested furlough, 68% said that their employers had refused to do so.
Can parents appeal if their employer refuses to furlough them?
Whilst the guidance on the furlough scheme specifically states that it can be used for employees needing to look after children, there is no legal right to be furloughed.
Employers have ultimate discretion on whether or not to furlough employees meaning that there is no legal right to appeal an employer’s decision either.
In practice, employees can of course challenge their employer’s decision making informally or by raising a grievance. Again, employers should make decisions about furloughing staff objectively and consistently where possible.
For example, if decisions about furlough place certain types of employees at a detriment, this could risk discrimination claims particularly for working mothers who typically are more likely to be the primary care giver.
What are parents legal rights if they need to take time off work to look after children?
Under the Employment Rights Act, employees have the right to take a "reasonable" amount of unpaid time off to take "necessary" action to deal with particular situations affecting their children.
Note that workers and the self-employed are excluded from the right, as are the police and those in the armed forces.
There is no definition for what would be considered as ‘reasonable’ or ‘necessary’ but case law and guidance direct that the amount of such time off will be that to enable the employee to deal with an immediate crisis.
We know that school are closed until 8 March at the earliest. Therefore, parents and guardians should not rely on this right to enable them to provide continuous care moving forward but could provide a useful short-term solution if childcare arrangements fall through at short-notice as an example.
What are the alternatives?
Asking parents/guardians to use their annual leave could be beneficial option for both parties as the employee gets paid and the employer has certainty of working days moving forward throughout the holiday year.
Employers can also give notice ordering employees to take holiday on specific dates but, under the Working Time Regulations, this notice must be twice the length of the period of leave that the worker is being ordered to take.
However, this is not a perfect solution: 3 in 10 of those who responded to the TUC’s poll were concerned about using their annual leave so early in the year, with school holidays still to come. Meaning that where employers enforce annual leave this could have a negative impact on morale/engagement amongst staff.
Employers can also grant employees unpaid time off to look after their children.
As employees have a statutory right to “reasonable” time off to care for dependants, employers should be mindful of before refusing leave or before taking action against an employee who is unable to fulfil their contractual duties due to needing to care for their children.
Employers should try and adopt a consistent approach with parents and guardians to avoid discrimination claims, specifically as care giving will disproportionately impact women. As well as litigation risk, there could also be negative employee engagement implications where colleagues are treated differently to one another.
Unsurprisingly, the TUC poll reported that parents were concerned about the financial impact taking unpaid leave will have on them. With schools closed until 8 March at the minimum, unpaid leave is unlikely to be suitable option in the long term.
How should worried parents approach their bosses to ask about flexibility during this time?
Communication is key. Speak to your employer sooner rather than later so that as much preparation and planning can be made for any leave you expect you may have to take. It should also be noted that employees have an obligation to disclose if they cannot do their job in their contractual hours. Therefore, do not assume you have the right make up hours that suit your domestic circumstances, although many employers will likely agree flexibility to fit with childcare demands.
Note that employees looking for flexibility during this time should also be willing to be flexible too. There are a few options available for taking leave and it is more likely that an agreement will be reached with your employer if you are willing to consider all options available as well as any combination of any too.
Employers are likely to have experienced these issues before when the first school closures were announced in March last year. Because of this, your employer will likely know what worked for the business and for employees when tackling this issue.
Should you need advice on how to assist employees with childcare responsibilities during lockdown and beyond, or additional advice on the risks regarding indirect discrimination claims, our employment team is on hand to assist.