Is an employee entitled not to work because they have no childcare?

In our previous blog we examined in detail the circumstances when schools must send children home to self-isolate where they are showing symptoms of COVID-19, have tested positive for COVID-19 or have been in close contact (usually a ‘bubble’) with another pupil or staff member who has tested positive for COVID-19. In limited circumstances, some parents and carers will be entitled to statutory sick pay (or possibly contractual sick pay) following the widening of the definition of those ‘deemed incapable of work’ under the amendments to the statutory sick pay scheme. In this blog we will look more closely at the options and risks facing employers where their employees are not caught by the new SSP provisions but nevertheless need time off work to look after children sent home because they have been in close contact with another pupil or staff member who has tested positive for COVID-19. Remember, these ‘bubbled children’ must self-isolate for 14 days whether or not they go on to develop symptoms of COVID-19 and/or test negative.

Is flexible furlough an option?

The Revised Government Guidance on the Coronavirus Job Retention Scheme (last updated on 17th July 2020) provides: Employees who are unable to work because they have caring responsibilities resulting from COVID-19 can be furloughed. For example, employees who need to look after children can be furloughed. Such an employee can continue to be furloughed from 1st July 2020 so long as you have previously submitted a claim for them in relation to a furlough period of at least 3 consecutive weeks taking place any time between 1st March 2020 and 30th June 2020.

The Coronavirus Job Retention Scheme will continue to provide support until 31st October 2020 for those who had been furloughed at least once by 10th June and for people who return from maternity, adoption, shared parental, paternity and parental bereavement leave after 10th June 2020. The complexities of the operation of the furlough scheme are beyond the scope of this blog and specific legal advice should be sought.

Dependants Leave

This is a “day one” right with no minimum service requirement. An employee is entitled to take reasonable time off as “dependants leave” but only in specified circumstances aimed at dealing with emergency situations. The employee must tell their employer the reason for the absence as soon as is reasonably practicable and how long they expect to be absent. There may be a contractual right to paid dependants leave but there is no statutory obligation on employers to pay the employee for the time off and what is “reasonable” will depend on the employee's individual circumstances. The current case law may not extend what is reasonable to two weeks or more.

Statutory dependants leave allows an employee to take reasonable time off to:

• take action necessary to provide assistance to a dependant (including a child) who falls ill and/or where there has been an unexpected disruption or termination of child care arrangements, or
• make arrangements for the provision of care for, a dependant (including a child) who falls ill and/or where there has been an unexpected disruption or termination of child care arrangements.

However, where the child is no longer sick or the disruption in childcare arrangements is not unexpected, there is no statutory right to take time off. It is also clear from the case law that making arrangements for the provision of care for a dependent who is ill does not include the provision of longer-term care by the employee themselves – there is arguably no right to dependants leave where the employee is to provide child care beyond the initial emergency. It remains to be seen whether sending ‘bubbled’ children home from school following close contact with a child (or member of staff who has tested positive for COVID-19) is held to be “unexpected” – arguably absences in relation to the COVID-19 pandemic are relatively foreseeable – there is therefore some doubt about whether an employee could claim an entitlement to dependants leave in those circumstances. In deciding whether to grant dependants leave, disruption or inconvenience caused to the employer's business should not be taken into account.

Parental Leave

Where there is no contractual parental leave scheme, the statutory scheme allows eligible employees a separate entitlement to take unpaid parental leave of up to 18 weeks (per child), at any time until the child is 18. A maximum of four weeks’ leave in respect of any individual child can be taken each year but usually only in blocks of a week (this rule can be disapplied by agreement). There may be a contractual right to paid parental leave but there is no statutory obligation on employers to pay the employee for the time off.

Parental leave only applies to an employee who, at the time the leave is to be taken, has been continuously employed for a period of not less than one year. Parental leave is to enable an eligible employee to take leave for the purpose of caring for that child. Where there is no contractual parental leave scheme, an employee must give 21 days’ notice to the employer of the beginning and end dates of the requested leave and comply with any request by the employer to produce evidence of entitlement to parental leave. This notice period will preclude an employee from taking parental leave in most circumstances where schools send home ‘bubbled’ children at short notice. However, the notice period may be shortened or dispensed with altogether by agreement. An employer is entitled to postpone an employee’s request for leave where it considers that the operation of its business would otherwise be unduly disrupted; but the employer cannot deny the leave or split it up into shorter periods and must consult with the employee before reaching a decision.

Employers Beware - Protection from detriment:

It appears that both the statutory rights to dependants leave and parental leave may not go far enough to entitle an employee to take sufficient time off work to care for children sent home at short notice due to close contact with a pupil (or member of staff) who has a positive test for COVID-19. But an employee has a right not to be subjected to any detriment by their employer for having requested and/or taken time off for dependants leave or parental leave and if the employee is dismissed because they took or sought to take time off in accordance with their right, such a dismissal will be automatically unfair. Particularly where employees have requested dependants leave for a relatively short period of time, they are more than likely to be protected from any detrimental treatment (such as disciplinary action) or dismissal as a consequence of taking such time off. The risk remains that the unprecedented circumstances surrounding the COVID-19 pandemic, and the effect this is having on school children and their working parents and carers, may see an unprecedented and benevolent construction of the law in favour of employees.

This area of law is relatively unchartered territory in the context of the current COVID-19 pandemic and each case will be turn on its own facts - specific legal advice should be sought.

Employers Beware - Indirect Sex Discrimination

The workplace and working arrangements made by an employer in the face of the COVID-19 pandemic will constitute provisions, criteria or practices (PCPs) which may apply to all or sections of the employer’s workforce. If those PCPs cause a particular disadvantage to any group with a protected characteristic (e.g. women), then this may constitute indirect discrimination which will be unlawful unless it can be justified by the employer as a proportionate means of achieving a legitimate aim.

This area of law is relatively unchartered territory in the context of the current COVID-19 pandemic and each case will be turn on its own facts - specific legal advice should be sought.

Employers Beware – Direct Sex Discrimination

Giving some employees time off work but not others is high-risk and care must be taken to avoid any conscious or unconscious direct discrimination in this decision-making.

This area of law is relatively unchartered territory in the context of the current COVID-19 pandemic and each case will be turn on its own facts - specific legal advice should be sought.

Employers Beware – Whistleblowing

It is possible that, in dealing with a situation involving an employee’s lack of or disruption to childcare arrangements, the employee discloses information which may tend to show that, in their reasonable belief, the health or safety of their child may be endangered. Accordingly, such an employee may make a whistleblowing disclosure which would trigger the statutory protection against detrimental treatment and/or dismissal under the public interest disclosure provisions.

Conclusion:

It goes without saying that we are in unchartered territory when it comes to the application of ‘old laws’ to the new challenges brought about by the COVID-19 pandemic. There are many unanswered questions when employees are faced with new and stressful challenges caused by school closures or the requirement for schools to send children home for periods of self-isolation. So too are there many unanswered questions for employers when it comes to dealing with the inevitability of requests for time off work for child care reasons. Each case is likely to be very fact specific and it is always recommended that expert legal advice is sought. Given the lack of case law specific to the impact of COVID-19, it will be the prudent employer who takes a cautious approach and seeks creative ways to accommodate their staff whilst they deal with their own difficulties at home. Good employment relationships in times of hardship will usually reap benefits and loyalty when the storm has passed. The final blog in this series focuses on some of the practical tips for employers trying to accommodate requests from their staff to take time off for child care reasons in the face of increasing numbers of children being required to self-isolate.

This blog was prepared in consultation with the invaluable opinions of the employment barristers of Cloisters Chambers, with special thanks to Claire McCann.

The opinions in this blog form a general overview of the law and its application. You are advised to seek specific legal advice for individual cases as each will be highly fact-specific and the current COVID-19 pandemic presents its own unique and untested legal challenges.