Schools and all childcare providers are being asked to remain open only for those children who absolutely need to attend. This concerns a limited number of children – those who are vulnerable or cannot be safely cared for at home and those whose parents are critical to the Covid-19 response.
This blog aims to answer some questions which are likely to arise as a result.
Employers should consider possibilities carefully rather than just dismissing the idea that home working “wouldn’t work” – these are unprecedented times and the advice is that anyone who can stay at home, should do so.
It is important to talk to affected employees, getting their ideas and agreement to changes. Doing so will keep employees productive for the business, maintain good employee relations and may avoid them having to take unpaid leave.
It is fine to stress that this is a temporary measure for those who can work from home in some capacity. Employers should pay in full if the employee is able to perform their role from home. If an employer believes an employee can only do part of his/her job from home, any proposed reduction in pay to reflect this must be agreed with the employee. Unilaterally cutting an employee’s pay could lead to breach of contract claims, unlawful deductions from wages claims and/or constructive unfair dismissal claims.
Consider what support they may need from an IT and technical perspective to work effectively from home. Consider whether any targets should be adjusted to be realistic in the changed setting.
Ensure that communication to the employee is maintained throughout the home working period and that they do not miss out on important business announcements while they are at home.
Employees may be able to perform their role from home but require changes to their hours or the times when they work during the day. Employees with at least 26 weeks’ continuous employment can make a request for flexible working. This should be unnecessary if employers are flexible in these circumstances, on a temporary basis. However, if an agreement can’t be reached informally, it is an option for employees.
Flexible working requests can result in either temporary or permanent changes to the contract of employment, which may not be helpful to the employer in the longer term, so being flexible now without a permanent change may be a more attractive option.
Employers must deal with requests in a reasonable manner and can only refuse a request on one of the prescribed grounds which are set out in the link below:
The right does not apply to self employed contractors, consultants or agency workers – only employees working under a contract of employment.
No measures have been brought in to cover pay whilst looking after children and the new job retention scheme announced by the Chancellor on Friday does not apply in these circumstances.
1. If the business can sustain it, one option is to pay this leave in full.
2. Employers can require workers to take their statutory annual leave at a specified period. This, however, is subject to the requirement to give notice of at least twice the length of the period of leave that the workers are being ordered to take.
3. It is possible for businesses to agree unpaid leave with their employees. Any attempt to do this unilaterally, would be a breach of contract and could lead to breach of contract claims and even constructive unfair dismissal claims.
4. If the employee requests time off to care for children but the employer does not agree, employees can use one of two statutory processes to obtain unpaid time off for this scenario, these being Time off for Dependents (generally only used to set up other arrangements) and Parental Leave, which is a longer term option, but is still unpaid.
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