The current national lockdown in the UK has imposed school and childcare closures for all but those children of essential key workers. Even prior to lockdown measures, many children were being sent home regularly to isolate, due to a positive case of Covid-19 in their class or school bubble. This has inevitably left many working parents struggling to balance their work with caring responsibilities, whether this is balancing duties while working from home, or managing childcare in order to go into the workplace if working from home is impossible.
To date, there are currently no emergency provisions in place for the UK addressing specifically childcare and working parents as a result of the pandemic. However, there are a number of options for employees to consider with their employer to improve their working arrangements such as furlough, flexible working requests or taking leave.
The UK Coronavirus Job Retention Scheme by which many employees have been put on furlough, has been extended until 30 April 2021. Employees can therefore ask their employer to furlough them. The government guidance which was updated in November 2020, states that employees are eligible for the grant if they have “caring responsibilities resulting from coronavirus, such as caring for children who are at home as a result of school and childcare facilities closing, or caring for a vulnerable individual in their household”.
Employees may request that their employer furloughs them on this basis, however, this is not an entitlement and the employer does not have to agree to the request. In assessing whether furlough might be possible, employers may consider the employee’s role and duties in accordance with business demand during the proposed period of furlough. Depending on the type of role, this may not be feasible. Nonetheless, employers should be able to communicate their reasoning to the employee, and be open to discussion. Flexible furlough may be a preferable option, such as furloughing an employee on one or two set days per week, and could be agreed in a way which works for everyone.
Employers should nevertheless be mindful of how they apply the scheme, being as consistent and fair as possible in their selection process to avoid conflict and risk of claims. For example, there may be a risk of indirect sex discrimination in choosing to furlough part time employees, which could place a particular disadvantage on those employees who already work part time due to childcare responsibilities. Similarly, choosing to furlough only older employees over others could be discriminatory. If employers are not open and communicative regarding their reasons behind placing particular staff on furlough, there is a risk that protected characteristics could implicate decisions, as well as the risk of damaging mutual trust and confidence between employer and employee.
Flexible working requests
Employees with 26 weeks’ continuous employment can make a flexible working request to make a change to their terms and conditions. While requests would usually be for a permanent change, employees can instead request a temporary change to their terms and conditions (such as working hours or days), to allow for flexibility during the pandemic to meet childcare or other demands at home.
If an employee makes a statutory flexible working request, employers must deal with the request in a reasonable manner and notify the employee of the decision within three months of the request (or longer as agreed). Unless the employee is not eligible to make the request, there are eight specific grounds upon which employers can legitimately refuse a request, being; burden of extra costs, detrimental effect on ability to meet customer demand, inability to reorganise work of existing staff, inability to recruit extra staff, detrimental impact on quality, detrimental impact on performance, insufficiency of work when the employee proposed to work, or planned structural changes.
It is therefore not guaranteed that a flexible working request would be granted by an employer, and given the three month window for a decision to be made, the process could potentially be lengthy, and perhaps unhelpful in the context of an employee needing to make a relatively quick change to accommodate their childcare situation due to the pandemic.
However, while the statutory right to make a request is limited to one request within a 12 month period, there is nothing to stop additional informal requests or arrangements being made, and employers should still give such requests due consideration, especially in the current circumstances and particularly if there could be a discrimination risk. However, employers should be cautious in dealing with multiple requests at the same time to ensure they are dealt with fairly. Many employers set out the process within a clear flexible working policy.
Time off for dependants
Employees also have a right to time off to care for dependants. This is usually time off which is given for unforeseen disruptions/emergencies involving a dependant (which could be a child, parent or partner). There is no specific duration for this type of leave, as it is primarily intended to allow employees to deal with unexpected situations, such as a breakdown in childcare, which would not usually last more than a day or two. The time off should be ‘reasonable and necessary’, however, in practice, open discussions should take place between the employer and employee to find a solution. This statutory right is unpaid, unless the employer agrees otherwise and so is not a long term solution.
Taking leave – unpaid parental leave or annual leave
Employees also have the option of taking leave, either in the form of parental leave or using their annual leave entitlement. With regards to unpaid leave, if employees have at least one years’ service with their employer and have a child under 18, they are able to take up to 4 weeks’ per child/per year, up to a maximum of 18 weeks as unpaid parental leave. This is the statutory minimum and again some employers may offer contractual parental leave. There are also notice requirements to take unpaid parental leave but the employer may decide to waive these. The employer does have the right to postpone parental leave if the leave will result in disruption to the business.
If the employee decides to take annual leave then this is paid at normal salary. However, there are notice requirements and an employer can give a counter notice. However, many employers may be encouraging their employees to use their leave in these circumstances.
As mentioned, while there are currently no emergency provisions in place for parents in the UK, some companies have gone further by implementing policies for those with childcare needs, such as additional paid leave or more extensive options for flexibility. Employers should continue to facilitate open discussions with employees to understand their individual circumstances and how best to provide support.