20 January 2021
Law at Work - January 2021 – 2 of 4 Insights
With the closure of schools in England following the current coronavirus related lockdown, employees are grappling with working arrangements where they are also now having to care for, and home school, children. Specifically, employees want to know whether they can ask that their employer to put them on furlough or consider other options if they cannot work because of childcare or other caring commitments. Does the employer have to accede to their requests?
The government guidance on the CJRS scheme updated in November (and again this month) confirms that furlough is available to people who are required to stay home because they have childcare or other caring responsibilities resulting from coronavirus. Many employers are not aware yet that the guidance has changed.
Earlier this month the TUC publicised the issue calling on employers to "do the right thing" and offer furlough to all parents affected by school closures. Their recent survey of more than 50,000 working mothers in the UK found that 78% of working parents have not been offered furlough by their employers, with parents using annual leave to manage their childcare, reducing their working hours, or taking unpaid leave.
These are issues which employers must take address fairly, and consistently, given the length of time which schools may be closed. In England this is until at least February half term (the week commencing 15 February). The period over which lockdown restrictions could last, including the closure of schools, has now been extended by legislation, to 31 March 2021. The furlough scheme is currently due to end on 30 April 2021.
Employers are now being faced with competing requests; they should be consistent and non-discriminatory in their approach and have a structured plan. The rationale for decisions around whether to agree to furlough should be documented. As ever, the duty of trust and confidence should be borne in mind. Other options available to employees as an alternative to furlough are discussed below. These could include taking annual leave, unpaid parental leave and requests for flexible working.
The latest version of the government guidance states that where an employee’s health has been affected by coronavirus (COVID-19) or any other conditions, the employee "is eligible for the grant and can be furloughed, if they are unable to work, including from home or working reduced hours because they….have caring responsibilities resulting from coronavirus (COVID-19), 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 caring for children because their normal childcare or school is closed due to COVID-19, may not be able to work from home (or at the workplace) due to their children’s needs and can ask to be furloughed.
Employers can choose to furlough such employees either because they decide to do so, or where employees have requested to be placed on furlough. However, there is no obligation for employers to place such employees on furlough – it is not an "entitlement".
Nature of role: Under the current lockdown in England people can only leave their homes for work if they cannot reasonably work from home. Employers may require employees to be present at work in hospitality, retail or critical worker roles for example and so are unable to furlough them. Even if employees do work from home, the nature of their role and work that they are required to carry out may also mean that furlough is not a viable option for the business.
Flexible furlough: Employees may request to be partially furloughed, perhaps on particular days of the week, to share caring responsibilities with a partner, or this could be suggested by the employer.
Indirect discrimination: Could an employer’s policy to refuse to furlough employees have a disproportionate impact on women and amount to indirect sex discrimination? An affected employee could argue that by the employer unjustifiably applying a general rule (eg no furlough) this puts women at a particular disadvantage because they still tend to have the greater share of childcare obligations.
Trust and confidence: It is possible that if an employer does not have a good reason either to not agree to furlough an employee with childcare responsibilities, or assist with finding a solution to what (hopefully) is a temporary situation, then this could amount to a serious breach of contract and a breakdown of trust and confidence between an employer and their employee. This becomes more likely if employees are not treated consistently. Conversely, employers should not make the presumption that because an employee has children, that they should be furloughed ahead of other employees.
It's worth also looking ahead at the post furlough landscape and ensuring that bonuses, commission, performance reviews, promotions etc. which look back over a period during which an employer made use of the CJRS do not adversely discriminate against furloughed employees. This is a potential trust and confidence issue which applies to all affected staff, not just parents.
In circumstances where furlough is not appropriate, and employees face challenges of both working and juggling childcare and home schooling, particularly for primary aged children, what other options are available to them?
An employer may allow employees to take some annual leave. The benefit of this is that employees would be paid at their full salary. However, employees only have a fixed amount of holiday, and as most holiday years run from January to December, they will not yet have accrued holiday in 2021 which is available to be "used up".
Employees may request to work flexibly while schools are closed e.g. to negotiate either a reduction of their hours or flexibility over the times of the day or week that they work to allow them to balance work and childcare. In the current circumstances, employees may make an informal request. If this is not allowed, then an employee can put in a formal flexible working request. This takes longer to process and could be refused if an employer considers that it would have a detrimental impact on their business.
Employees have a statutory right to take unpaid time off for dependants which is necessary because of an unexpected disruption in care arrangements. This covers not just children, but other dependants too, such as a partner or parent. Such time off usually lasts only a couple of days, because it is aimed to allow an employee time to organise the care arrangements. While the closure of schools may well have triggered this right, the length of time off to organise childcare may well take longer than a few days. The time taken off just has to be reasonable and necessary and does not have to be taken in blocks of one day. It can be taken for only a few hours.
Employees can take unpaid parental leave if they have worked for their employer for at least one year and have a child under 18 years old. Four weeks can be taken per child per year up to a maximum of 18 weeks. Strictly speaking, employees need to give 21 days’ notice to take unpaid parental leave, but given the circumstances, employers could waive this requirement so that it could start sooner. The disadvantage to the employee is that the leave is, of course, unpaid and limited in duration.
If a school has closed due to lockdown parents may be able to use a childminder or family member/friend for help and create a childcare bubble. Households with anyone aged under 14 can form a childcare bubble which allows friends or family from one other household to provide informal childcare.
The German government is supporting working parents during the COVID-19 pandemic by providing employees with responsibilities for children, due to school closure or sickness, compensation for loss in earnings. In the case of shared care, parents receive compensation for up to ten weeks of loss of earnings; in the case of sole supervision, care or nursing, up to 20 weeks, up to specified amount per month. Other countries have also introduced a grant to parents to cope with childcare issues during COVID.
In the UK some employers have been granting working parents additional paid leave or introducing more flexible working options, such as the days of the week or time of day that employees work, around home schooling. Others are introducing paid emergency leave which can be taken in blocks of a day or part day.
Working parents should seek to identify the problems they face and suggest to their employers how they can fit their caring and home schooling around work responsibilities. Employers should recognise that this situation is temporary and seek to work with their employees to support them through these challenging weeks and months.
by multiple authors