For the past few weeks the country has been coming to terms with the impact of the Coronavirus and we have all had to adapt to a new way of life in lockdown. For much of the working population this has meant that, instead of going to a place of work every day, employees are now expected to work from home. Whilst this is a big change for all, with schools being closed to children – except those of key workers - there is an increased challenge for employees who now have to juggle work commitments with child care.
The Government has taken this into account and recently amended their guidance to state that those who are unable to do their jobs because of caring responsibilities resulting from Coronavirus (this includes caring for children who are at home as a result of school and childcare facilities closing) can be furloughed. Employees must be furloughed for at least 3 weeks and cannot carry out any work for their employer during this period. Further information about furlough and the Job Retention Scheme is available here.
However, an employer is not obliged to furlough their employees and a tension can exist where an employer has work for their employee to do but the employee is having difficulty with it due to caring commitments. In these circumstances, what options are available?
Unpaid parental leave
Employees who have children have the right to take parental leave to look after their children up to their child’s 18th birthday. Unless your employee’s contract says otherwise, this time off will be unpaid. Parental leave is available to birth and adoptive parents and also to anyone expected to have parental responsibility for a child. Each parent can take up to 18 weeks for each child and it should be taken in blocks of a week at a time with a maximum of 4 weeks a year for each child.
Parental leave is for the purpose of caring for a child and should not be used for any other purpose.
In the circumstances it is likely that the need to look after a child who is not at school, due to the school closures, would fall into this category and employers can agree with the employees a period of parental leave at this time.
Parental leave is designed to be agreed in advance and there are specific notice provisions which apply, however, it is recommended that employers are flexible about this in the circumstances. Parental leave is not normally appropriate for dealing with emergencies involving the child, such as an unexpected illness. A more appropriate response to such a situation would be for the employee to rely on the right to unpaid time off for dependants (as discussed below).
Time off for dependants
Employees can take a ‘reasonable’ amount of unpaid time off for dependants to deal with emergencies which arise in relation to dependants, e.g. unexpected illness or childcare interruptions. A reasonable period of time off is likely to only be a few days during which time alternative arrangements should be made.
This type of leave may be agreed between employee and employer, in these circumstances, where only a few days off are required. For example where another parent in the household is unable to share the childcare due to unexpected illness or work commitments. This type of leave will be useful for employees who need to take an unexpected short period of leave.
Where the time off required is longer for a few days or not to respond to an emergency, employers should discuss this with the employees and understand whether there is any other option,– for example a period of annual leave or flexible working (as discussed below).
Employees could submit flexible working applications to agree a temporary variation to their hours of work or the number of days that they work per week whilst the crisis is ongoing. Whilst having staff working different working patterns may not appear an attractive prospect for employers, in the circumstances, it would be worthwhile considering it. For example, where an employee is requesting that they make up their hours at the weekend, or by working hours in the evening this may be preferable to the work the not being done at all. Whilst there is a formal application to ordinarily be followed, employers could take a more informal approach in the circumstances. However, any variation (temporary or otherwise) should be agreed in writing. If refusing a flexible working request, the reason for this must fall into one of the nine statutory grounds for refusing flexible working and we would recommend you seek advice.
As with all options available, employers should discuss with their employees the extent of the changes required to their working hours/week and how this can be managed with as little impact as possible on the business.
It may be beneficial to allow employees to take short periods of annual leave from their entitlement if they wish to do so.
From a business perspective with employees working at home, you may find that your business is quieter and therefore employees taking holidays during this time may be of benefit to both employees in terms of taking a break from work and also the employer as there will less holidays to be taken when the crisis is passed and business levels hopefully revert to pre-lockdown levels.
Agreed periods of unpaid leave
Where an employee does not have sufficient holiday entitlement left, employers could agree to their employee taking a period of unpaid leave separately from any of the above statutory entitlements to unpaid leave in particular circumstances. Unpaid leave is a wide-ranging concept and there is no hard and fast rule on how it is implemented.
For employers, a period of unpaid leave in these circumstances may be beneficial where an employer requires a reduced workforce for a short period of time but will require the full workforce to be re-instated in a period of time that is shorter than the 3 week minimum period of furlough.
It is likely that where an employer can be flexible regarding when and how much work is carried out and in relation to the leave that an employee can take, in these unprecedented times, employees will feel supported and their work output will reflect this.
Where an employee is not managing to juggle working and having children at home, there is a risk that they may go off sick through stress. A period of sick leave could potentially last for much longer than a short period of flexibility/reduced work levels. Therefore, it is recommended that, wherever possible, employers are flexible in their approach use the options available to assist employees to achieve a work/life balance at this time. Where employees have concerns about their ability to work from home in these circumstances, we would advise having a discussion to identify possible ways to address the issues. Any agreed changes can be temporary and kept under close review to ensure they are workable and practical for both the employer and the employee.
Although there are a number of benefits to furlough, where an employee is placed on furlough they will be unable to carry out any work for the employer for the whole period of time they are on furlough (a minimum of 3 weeks). Where it may be difficult to manage employees working from home, furlough may seem the best option. However, it is important as an employer to explore the other options in terms of employees taking leave to ensure that you are able to keep up with business demands and keep your workforce feeling supported.