School’s Out for Winter Too – What are the employment law implications?

Last year saw a newfound respect for the hard work that teachers put in to teaching children, work that has become a lot harder when teaching virtually. More work is put into preparing work which will last the week, feedback is harder to give and there is a lack of face-to-face interaction to sort out struggles with schoolwork. This now falls to the parents, posing many issues. It is exceptionally difficult to pay due attention to both work and schoolwork at the same time. So, what are the options available to employees and employers, aside from using annual leave?

Parental Leave

Parental leave is a form of statutory unpaid leave available to some working parents separate to maternity, paternity or shared parental leave. This is available to birth and adoptive parents (and anyone else who has parental responsibility for a child) who have been employed at their company for more than one year. Parental leave allows parents to take a total of up to 18 weeks' unpaid parental leave for each child for the purpose of caring for that child. So, for someone with 3 children, the amount of parental leave available is 54 weeks. Typically, 21 days’ notice should be given to start this leave

Obviously, the above is not likely to be an attractive option, certainly in the long run, for parents because it is unpaid. Furthermore, whilst more flexible than other types of leave, the notice requirement will mean that the vast majority of the lockdown could be almost over before this has occurred (unless the employer allows it at short notice). All-in-all, not the most attractive option.

Flexible Working

Any employee who has been employed for 26 weeks or more has the right to make a flexible working request. This request will seek to make their work-life easier. In more normal times, this might seek to allow an individual to work from home, but that has been an enforced change for many. Instead, this may be used to either not work certain days or change their working pattern. Obviously, a reduction in hours worked could lead to a pro-rata deduction from pay, but it is worth considering for employees. Employers have a duty to deal with flexible working requests reasonably and may only refuse such a request for one of eight prescribed reasons:

• The burden of additional costs.
• Detrimental effect on ability to meet customer demand.
• Inability to reorganise work among existing staff.
• Inability to recruit additional staff.
• Detrimental impact on quality.
• Detrimental impact on performance.
• Insufficiency of work during the periods the employee proposes to work.
• Planned structural changes.

Ultimately, it is for the employer to decide whether to accept or reject such a request, but the risk in denying a request is that a claim may be brought.

Accepting a flexible working request need not be permanent, nor does it need to be agreed without seeing how it works in practice. It is possible to trial a flexible working arrangement to ensure that it works for the employer and employee. For the immediate future, so long as it is feasible to do so, this may cover the lockdown period and the situation can be reviewed when children are able to return to school.

Furlough

This solution has been proposed by the TUC for parents. As noted in previous articles, employees are paid 80% of their wages by way of Government grant. If the business has seen a downturn in work, then this could be a good solution for all. However, this is not the case for all employers. If a business is busy, it might not be able to accommodate furlough. Moreover, if there is some need for work and several employees are parents, how does the company fairly choose who is furloughed and who remains? This could pose risks to the company of discrimination or disgruntled employees. Employees have no right to be furloughed regardless, and furlough is not always going to be a legitimate solution.

Management

One solution is to simply deal with matters on an ad hoc basis. Is a parent in your team struggling on a particular day? Work out how to help them by being flexible – can they do other types of work more easily, are they able to pick up work at another time, can the business take the slack today? As long as individuals are not being singled out for beneficial treatment as a result of a protected characteristic, this may be a more appropriate means of dealing with matters in the short term.

What should you be doing now?

Overall, there are no easy solutions to assist parents and so a flexible approach is best. At the very least, an employer should provide support to their employees to alleviate stress in what is a very tough time for all. If it is not feasible to provide the support or solution requested, keep this under review and ensure that there is open dialogue to manage expectations. If they do not feel supported in this time, it will be difficult to keep them motivated to work, or to keep them at all because they may seek pastures new in the future.

Nevertheless, to be proactive, revisit your own policies regarding leave as well. These may require an update or further guidance for employees who may be looking into it to see how they can best work around an ever-changing situation.

Recommended Reading

Please see our own articles on furlough and supporting employees during lockdown.

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.