When an employee is refusing to work due to lack of childcare.

Practical Tips

When an employee gives little or no notice and appears to be refusing to work because they face an emergency in relation to their childcare, the employee is very likely to be entitled to time off as dependants leave. A short email acknowledging that the employee is facing an unexpected difficulty will help the employee to feel supported.

Get the employee to articulate the problem they face and ask them to set out what alternative arrangements they have already considered. Take care to avoid a knee-jerk reaction and think creatively of all the angles:

• Communicate as openly as possible with the employee;
• Inform the employee of their potential statutory entitlements set out in our previous blog (to dependants leave or parental leave);
• Check all the policies on flexible working (including reduced hours and/or homeworking), parental leave, other types of paid and unpaid leave and send these policies to the employee;
• Consider the possibility of flexible furlough;
• Ask the employee what they wish to do and for how long;
• Assume that all options are possible, until it has been ruled out on reasonable and objective grounds;
• Avoid making assumptions as these could lead to stereotyping and are more likely to taint the decision-making with discrimination;
• Remember that working arrangements are likely to constitute “provisions, criteria or practices” which may particularly disadvantage an employee as a member of a protected group and amount to indirect discrimination which may need to be justified;
• Keep a record of all decisions taken and the rationale for them;
• Arrange for a regular review process, unless an employee has taken a fixed period of parental leave, in which case, arrange for a return to work discussion towards the end of that period, particularly where the employee has taken a period of more than four weeks’ leave.
  

Misconduct or capability:

On rare occasions employees may abuse a right (whether a statutory entitlement or a contractual right) in connection with their childcare responsibilities, or where they simply go “AWOL” because they fail to communicate about their inability to work. In those unusual circumstances, it might be open to the employer to take disciplinary action, up to and including dismissal, although a knee jerk reaction should be avoided.

Employers should assume that there are rational reasons for an employee’s absence and seek to work with the employee to agree continued absence onto an authorised footing, rather than jump into disciplinary proceedings. For example, it may be more proportionate to allow the employee – on an entirely discretionary basis - to take a longer-term period of unpaid leave, including a sabbatical.

Where the employee has lawfully exercised their entitlement to dependants leave or unpaid parental leave, an employer is extremely unlikely to be able lawfully to consider the disciplinary/dismissal route and should tread especially carefully where any default by the employee is technical (e.g. they have not complied with notice requirements).

Keep contemporaneous records:

It is stressful to combine work with childcare when usual arrangements have been disrupted. An employee who feels unsupported may also feel targeted and is more likely to perceive that any adverse treatment which follows their request for leave for childcare purposes is because they requested time off in accordance with their statutory rights.

The burden of proof is on the employer to show the reason for any detriment, or principal reason, for a dismissal was not the exercise of such statutory rights. Employers will be best placed to prove a reasonable and lawful reason for any alleged detrimental treatment (or a dismissal) if there are appropriate and contemporaneous records available which demonstrate the legitimate basis for the decision-making.

And finally, employees who are informed of their rights and possible options, have their individual circumstances carefully considered and are provided with clear and fair proposals, are far more likely to reach a compromise on time off for childcare reasons in the wake of the COVID-19 impact on schools, rather than pursue lengthy and costly litigation through a judicial system that is already suffering extreme backlogs in cases due to the COVID-19 pandemic. Many of the difficult choices which employers are having to make at the moment might have discriminatory consequences. As important as the avoidance of a tidal wave of new litigation in future months is the need to keep to a minimum feelings of unfairness within the workplace. Transparent policies and some type of consultation go a long way to keeping the peace in these challenging months.

This blog was prepared in consultation with the invaluable opinions of the employment barristers of Cloisters Chambers, with special thanks to Rachel Crasnow QC and 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.