09 Feb 2021

Employment

Working parents – What are my rights if I have no childcare?

The ongoing closure of schools has been causing considerable stress for working parents during this latest lockdown, with many mums and dads struggling to juggle their professional responsibilities with the need to care for, home-school and entertain their young children, often without the usual help provided by grandparents.

Here, our head of employment law, Daniel Wilde, answers the single most common question posed by working parents regarding their employment rights:

“I am struggling to keep to my work commitments while also having to look after my children. What are my options?”

As lockdown continues into another month, parents of young children across the world are finding it incredibly difficult to balance the demands of their jobs and the demands of their children – and with no clear picture yet as to when schools will re-open, many are reaching their wits’ end.

If you are finding it difficult to juggle childcare and work, you should discuss the situation with your employer rather than suffering in silence. Depending on your individual circumstances, there will be a number of options that may be open to you since, as a working parent, you have a number of statutory rights that you may not be aware of:

 

Time off for dependants

An employee is entitled to take ‘reasonable’ time off in specified circumstances. There is no obligation on employers to pay the employee for the time off and it is generally seen as short term ‘emergency’ leave.

Under section 57A of Employment Rights Act 1996, there are no limits on how many times you can take time off to deal with an emergency involving a dependent but the law is clear that you can only have time off if the disruption in care is ‘unexpected’ and you did not know about the situation that caused the disruption beforehand.

If you can show that you have tried to make alternative arrangements but there is nobody else who can help care for your children, then allowing time off should be considered reasonable and necessary.

Time off for dependants does not have to be taken in blocks of one day but can be just for a few hours. There is also no limit to how often you can take time off for dependants. Your employer cannot refuse you this time off and you should not be treated unfavourably for having taken it.

 

Parental Leave

An employee is entitled to take unpaid parental leave of up to 18 weeks per child at any time before the child’s 18th birthday. There are specific notice requirements that must be adhered to and you only qualify for parental leave if you have completed a year’s service with that employer. Parental leave should be taken in blocks or multiples of a week and you can take up to 4 weeks per child per year.

Your employer might be able to postpone your parental leave if the business would be particularly disrupted by it but it may be difficult for an employer to argue that asking you to postpone the leave is reasonable it in the current circumstances.

 

Furlough

An employer is permitted to place an employee who is unable to work because they have caring responsibilities resulting from the pandemic on furlough, which will be paid in accordance with the latest Government provisions.

The issue for employees, however, is that furlough is not an entitlement. Your employer does not have to agree to furlough you, it is their choice whether they do or not. However, given that it will not cost them anything over the 5% contribution to National Insurance contributions and employer pension contributions, many employers have been happy to accommodate working parents’ requests for this arrangement to be put in place.

However, it is worth knowing that if your employer receives public funding which is used for your salary – for example, if you work in a school or in the civil service – they may not be able to use the furlough scheme as the role is already funded by the public purse. Government guidance states that if your employer received public funding for staff costs and that funding is continuing, employers should continue to pay their staff and not furlough them. You could therefore ask your employer to grant you ‘furlough’ for this time and pay you your furlough pay for the time you have had to take off because of Covid, but there is no guarantee that this request will be approved.

 

Flexible working application

Employees with at least 26 weeks’ continuous employment can make an application for flexible working. This may be the best option if furlough is not possible but remember that your employer has three months to respond – and is within their rights to deny the request – so this may not provide the quick fix that many working parents will need.

In all conversations with your employer, try to be positive and accommodating, focusing on what you can do and how you could make the situation work, and remember that no matter how long it feels like the crisis has been going on for, this situation is only temporary.

 

If you do not manage to reach an agreement with your employer and they insist on you coming back to work despite the absence of childcare, it may be possible to make a claim for indirect sex discrimination under section 19 of the Equality Act 2010. If your employer dismisses you for not being able to work due to lack of childcare, this may be grounds for unfair dismissal, depending on the reason cited by your employer and the process followed in dismissing you. I would strongly advise seeking legal advice if you are in this position.

Ultimately, an employer is entitled to dismiss an employee who cannot perform a useful role because of long-term childcare commitments. However, given the ongoing difficulties being presented us all by the Covid crisis and the fact that the unconscious sympathies of the Employment Tribunal will almost inevitably be with the employee, it will certainly be in employers’ interests to be sympathetic and accommodating to their workers’ individual circumstances until the crisis is over.

If you have experienced an issue at work or feel you have been unfairly treated by your employer and want advice on what to do next, our employment law experts are able to offer specialist advice on a wide range of issues. Whatever situation you may be facing, our wealth of experience means we can offer comprehensive and clear guidance to help you know where to turn. Please contact Daniel Wilde on 01633 244233 or email wilded@hevans.com 

Share post