School closure

As schools closed their doors last week, parents and businesses across the country have been left wondering how they will manage childcare and provide an education for their children.

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.

Employees who need to be at home to care for their children during this period are likely to fall into two main categories:

  • Those who can work from home in some, albeit possibly limited, capacity; and
  • Those whose jobs are not possible to continue from home (e.g. factory workers).

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.

Consider:

  • Are there different ways of working which may facilitate working from home?
  • Are there slight amendments to tasks/roles which could mean employees can still be productive from home, without changing the role dramatically?

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.

Practical issues

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 raise a flexible working request

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:

https://www.acas.org.uk/acas-code-of-practice-on-flexible-working-requests

The right does not apply to self employed contractors, consultants or agency workers – only employees working under a contract of employment.

Those who cannot work from home and need time off to provide childcare

Pay

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.

Options:

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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Author: Helena Wheeler

Senior Solicitor, ESP Law Ltd

Helena is an experienced respondent employment lawyer. She has provided a full range of contentious and non-contentious advice for a plethora of national and international clients at top regional law firms, including Pannone LLP, for almost eight years. Prior to entering the legal profession, Helena worked in various roles in HR for the fast paced Phones 4U Group and also completed a coveted internship in investment banking with the internationally renowned NM Rothschild & Sons.