Since September schools and other childcare provisions have been welcoming children back to start the new term.
However, the virus is still prevalent and all education and childcare settings are having to work within Government guidance to ensure that the setting is safe and they are taking actions to deal with any children, or staff who display symptoms, or who have been in close contact with those who display symptoms, or test positive.
Whilst the opening of schools is a positive move, because of the way in which schools are having to operate it’s clear that some children are being asked not to attend, because of a suspected case of the virus, or because someone in their ‘bubble’ has tested positive.
This means the childcare issues working parents have, or are could have, haven’t gone away. So, what does employment law say about time off for childcare reasons?
The legal position
Firstly, the legal provision for this is covered by ‘Time off for dependants’. The Employment Rights Act gives employees (male and female) the right to reasonable time off for dependants in the event of any of the following circumstances:
where a dependant falls ill, is injured or is assaulted
to making arrangements for the provision of care.
where the employee has to make arrangements for the provision of care for a dependant
in the case of the death of a dependant
where the arrangements for the care of a dependant have been unexpectedly disrupted or terminated (e.g. a child-minder fails to turn up)
where there has been an unexpected incident involving the employee's child at school.
There is no qualifying service period required to entitle an employee to take time off work to care for a dependant, but the time off is unpaid.
For the employee to be entitled to time off work, the circumstances must be unforeseen. The intention of the legislation is to allow employees to take time off work in the event of an emergency situation involving a dependant, and to be protected against any detriment for doing so.
Also key to the definition is the involvement of a dependant in the emergency. Therefore, emergencies relating to other domestic circumstances e.g. a flood at home will not be covered under this right.
However, it may be that within your employment policies, or your local arrangements you consider such emergencies, whilst outside of the legal definition, are acceptable reasons to request time off work. Some employment policies also allow for a number of paid days leave to deal with these emergencies.
Who is a dependant?
A dependant is defined in the legislation as one of the following:
husband or wife or partner
child
parent
someone else who is regarded as part of the family and lives with an employee (but not tenants, boarders, lodgers or employees)
anyone else who is reliant on an employee in emergency situations.
Can I refuse a request, or make the employee come into work?
In determining whether the leave is 'necessary' the following factors should be considered:
the availability of someone else who can help in the circumstances e.g. child’s other parent, grandparent, alternative provider.
the nature of the incident
the relationship of the employee with the dependant.
The entitlement is to a 'reasonable amount of time off'. In assessing this, the employer cannot take into account the needs of the business and any disruption that the employee's time off might cause.
In many situations, the employer will not have the opportunity to refuse the leave, because the employee will be informing the employer at short notice, or after the event. However, there are two main grounds on which time off can be refused:
where it is not necessary to take the time off (e.g. if a child has had a serious accident it would be reasonable for both parents to go to the hospital, but if a childminder was ill it would not be reasonable for both parents to leave their work to care for the child) or
where the amount of time off requested by the employee is unreasonable.
What other options are available to the employee?
However, if the employee has taken time off to care for dependants on previous occasions, the employer can take into consideration the following:
the number of times the employee has taken time off
the length of time off that the employee has taken
when the time off was taken
whether on each occasion the employer was informed of the absences
Employers should hold a return to work interview with an employee on their return to work after any period of time off for dependants, noting the number of days taken and any support to be offered to the employee. A template form for this purpose is available on request.
What is ‘reasonable’?
The Department for Business, Energy and Industrial Strategy (BEIS) advises that this should not usually be more than two days - but it will depend on the situation. Employers must take a common sense approach when establishing principles around a ‘reasonable’ amount of time.
What about school closures?
Under normal circumstances, an employer is likely to only deal with a small number of instances of time off for dependants throughout the year. However, on rare occasions, the number of instances may well increase due to unprecedented situations like coronavirus. Even when this happens, it is not within the discretion of the employer to deny the right to time off for dependants.
Employers are encouraged to discuss with employees about how an extended period of time off will be dealt with. Homeworking, annual leave or a temporary period of flexible working may help. If an employee has already been furloughed (and meets the conditions of the scheme) then they may be flexibly furloughed for the period of the time they need to provide childcare. However, if these options are exhausted then a period of unpaid leave may need to be agreed.
What happens if my child needs to isolate?
In this case, if the employee’s child has symptoms, or tests positive, then the household are required to have a period of isolation. This is detailed in the latest Government guidance here.
However the leave is treated, it is clear that employees cannot leave young children unsupervised, if their childcare breaks down. Employees will not be able to bring their children into work, and so employers will need to be prepared to deal sympathetically with requests from parents.
If you need any help or advice, please contact me.