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School’s out for summer, but where does that leave employers?

LCF Law | Employment Law | Parental Leave | Summer HolidaysWith the summer holidays approaching, and with many people working from home for at least part of the working week, can employers ask what childcare arrangements are in place and what happens when employees work from home and manage childcare at the same time?

Can employers insist staff arrange childcare when they are working from home?

Employees must generally be ready and available to work during their working hours and not distracted by other matters, such as childcare. Therefore, if employees cannot properly carry out their duties if they are looking after children, then the short answer is ‘yes’, employers can insist that staff working from home arrange childcare.

However, in practice it may depend on several factors, including the nature of the business, the employee’s role and the age of the children. Whilst older children can be self-sufficient, younger children normally can’t ‘fend for themselves’ whilst their parents work.

If employees can work alternative hours, for example in the evenings when children are in bed, then you could agree a slight change in working arrangements to accommodate childcare needs, if practicable.

Usually, if children impact a person’s ability to carry out their role, then childcare should be arranged. The difficulty often arises where there is a difference in opinion concerning the impact that childcare responsibilities involve.

Can I ask staff what arrangements they have in place?

Yes – if it’s done in an appropriate way and you ask all staff and don’t direct the question only to females, or certain sections of the workforce. The risk in asking specific individuals or departments is that you could end up on the wrong side of a discrimination claim and damage employee relations, so these conversations need to be carefully managed.

What if an employee arranges childcare but the hours differ from normal arrangements?

Often summer clubs have shorter operating hours than schools and might be in less convenient locations. Therefore, parents might ask for alternative working arrangements during school holidays.

In an ideal world, it’s best to find an agreement that works for all parties, allowing the flexibility required to assist with childcare arrangements, which fosters trust and loyalty. However, it’s not always possible and sometimes it’s better for employees to use family friendly leave options, such as parental leave.

What if my employee says they cannot arrange childcare and must be available to look after their children?

There are various types of leave that employees may be entitled to so they can manage childcare. They could take annual leave, or they may be entitled to parental leave or time off to care for dependants.

Parental leave is available to all parents with at least one year’s service with a child under 18. It can be taken in one-week blocks, for up to four weeks per year, and 18 weeks in total per child, before the child’s 18th birthday. It is unpaid but allows for an extended period of leave to be taken to care for children. For a disabled child the four-week limit per year does not apply.

Alternatively, if there is an unexpected interruption in normal childcare arrangements, or if the child has an accident or is unexpectedly unwell, then the employee may be entitled to time off to care for dependants. Again, it’s unpaid, and is intended to be short term leave to take ‘necessary’ action in the circumstances – for example, to arrange alternative care, rather than for several weeks to cover school holidays.

It is worth remembering that it is open to the parties to agree temporary changes to working hours – along with a corresponding change in pay – if that is the most appropriate outcome.

And employers do need to be mindful of the potential for indirect discrimination claims, particularly if an employee feels they have no alternative but to resign in light of childcare issues.

What can I do if an employee says they have childcare, but I don’t believe them?

The main issue is likely to be evidencing this. If the employee normally works from home and is continuing to work, it may be difficult to demonstrate that any temporary reduction in efficiency is related to childcare. However, where there are concerns, it is sensible to discuss these with the employee, remind them of the requirement to have arrangements in place and discuss alternative options if there are difficulties complying.

Ultimately, if an employee is not working when they should be, it may be a disciplinary issue and more formal action may need to be taken. However, this always depends on the circumstances of the case.

When can I take disciplinary action if an employee does not arrange childcare? 

If it’s been made clear that staff must have appropriate arrangements in place and an employee fails to comply without good reason, it may be possible to take formal action, depending on the individual circumstances. For example, if an employee has childcare that falls through at the last minute, it’s unlikely to be cause for action, but if they simply ignored the instructions, then it could be another matter entirely.

If an employee tells you they have childcare in place when they do not, it may be possible to argue that dishonesty alone is cause for disciplinary action. However, if the employee was dishonest due to severe anxiety, for example, other action such as counselling and support might be more appropriate. Conversely, if the employee has lied simply to avoid childcare costs and deliberately misled you, then that is another matter.

Unfortunately, there is no definitive answer as it always depends on the precise circumstances.

Given the difficulties, how can I try to prevent issues arising?

There will never be a fail-safe ‘one size fits all’ approach. However, it’s important to communicate with staff early and remind them of the requirements to have appropriate childcare in place. You can encourage any employees facing difficulties to speak to you and offer support and assistance where required, including discussing alternative options.

Documenting what has been communicated to staff can make it easier to challenge employees who fail to comply. Again, such communications should be to all staff to avoid potential discrimination claims.

Given the difficulties that can arise – particularly in this ‘new normal’ – we always recommend taking advice if you are unsure.

What can we do to help?

The employment team will be more than happy to discuss your needs with you.  If so, please contact James Austin on 01423 851 138 or email ku.oc1717065944.fcl@1717065944nitsu1717065944a.sem1717065944aj1717065944 for more information.

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