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January 6, 2021

With the announcement that schools will be closed once again due to the COVID-19 pandemic, many employees will be forced to balance their work with childcare responsibilities.

We outline below the employers' options if an employee cannot continue their normal work duties during the lockdown as they need to look after their child.

The legal position: Employees with childcare responsibilities

There is currently little legal coverage concerning employees whose work is affected by the closure of schools and other childcare services.

Inevitably the COVID-19 pandemic has made work-life balance incredibly difficult for employees with childcare responsibilities, so employers must be flexible at this time.

Ultimately, there are 4 main options that you can suggest to employees who must stay at home to look after their children:

Work from home 

As far as possible, you should encourage employees to work as normal from home.

Company rules about working from home, for example, that employees must not be responsible for caring for their children whilst working from home, may need to be relaxed to account for the current exceptional circumstances.

You may be able to offer support to employees, such as temporarily altering their duties or hours of work, so that they can continue working whilst looking after their children.

Furlough 

If an employee is unable to work from home due to the demands of their work or their childcare responsibilities, you can place them on furlough.

Government guidance states that employees who cannot work and must stay at home to care for their children as a result of COVID-19 are eligible to be placed on furlough under the Coronavirus Job Retention Scheme.

It is important to note here that refusing a furlough request from an employee who must stay at home to look after their children may give rise to a risk of claims.

This is because refusal is likely to have a disproportionate effect on women who generally have greater childcare responsibility and it could therefore amount to indirect sex discrimination.

Parental leave

Employees with at least one year's service have the right to take up to 18 weeks' parental leave in respect of each of their children up until the child reaches the age of 18.

However, parental leave is unpaid, so it may not appeal to employees, and short service employees will not be entitled to take it.

There are no legal stipulations for taking parental leave, but it may be covered within a collective or workforce agreement.

If there is no such agreement in place, fallback rules will apply which state that a maximum of four weeks' parental leave can be taken within a year, so it may not be sufficient to cover the school closure period.

Emergency time off for dependants 

All employees are entitled to emergency unpaid time off to deal with an emergency situation, for example, if their child becomes ill or childcare arrangements fall through.

This form of leave will allow an employee affected by the school closures to arrange provisional childcare, but it would not allow them to take time off to look after their child themselves.

There is no set limit on the length of time that can be taken off but emergency time off for dependants is generally no longer than a day or two.

You may as an organisation offer more extensive emergency time off than the statutory minimum, so this is something you should check.

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About the author 

James Rowland

James is the Commercial Director at Neathouse Partners and regularly writes articles surrounding issues in HR & Employment Law. Outside of the office, James is a keen Cricketer, playing in the Cheshire League for Nantwich CC. He also loves going to watch his football team, Crewe Alexandra. Feel free to connect with James on LinkedIn.

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