07 January 2021 #Employment
Read Employment Solicitor Georgia Robert’s comments in The Independent: How to financially survive lockdown 3.0
Again, employers and employees are facing the difficult balancing act of managing work and childcare through this third national lockdown. The three main options for employers to manage such leave are to place affected parents/guardians on furlough, have parents use their annual leave to take time off or take unpaid leave.
Government guidance on the furlough scheme sets out that grants can be claimed in these circumstances specifically for employees who are “unable to work because they have caring responsibilities resulting from COVID-19, including employees that need to look after children.”
However, employers opting to furlough parents must ensure they adhere to all requirements of the scheme, like obtaining written agreement from employees as one example. Employers should also note that grants moving forward are only available to employees who were employed on 30 October 2020 meaning it will not be possible to furlough new starters.
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.
Due to this employers’ will be unable to force employees to use their annual leave at short notice, like for this week as an example, as this would require notice to have been given two weeks ago. Because of this, employers should speak to their staff to agree that annual leave will be taken and be mindful of the notice requirement before making decisions unilaterally.
Employers can also grant employees unpaid time off to look after their children. However, with schools closed for a minimum of 7 weeks, this will not be suitable long term. Employees have a statutory right to “reasonable” time off to care for dependants which 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.
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.
Applying this to school closures, 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 whilst alternative arrangements for care are made.
Whilst the guidance 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 potential discrimination claims.
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 employees in tackling this issue, there is also likely to be a greater understanding and compassion from employers this time round as well.