Employment: parental rights and the pandemic
On 4 January 2021 we were faced with the announcement of the third English lockdown. We have been told to work from home unless this is not possible and schools have closed again for all but key workers, meaning many employers and employees are once more trying to reconcile working and home-schooling. What are the options for employers and employees trying to strike this difficult balance? Director Lucy Flynn an employment lawyer whose experience has been gained over many years at regional, heavy-weight law firms, offers her advice.
2020 was a year like no other for employers, HR professionals and employment lawyers, who found themselves in completely uncharted territory grappling with homeworking, health and safety issues and, in many cases, redundancies on a scale not seen before – as well as the novel concept of furlough.
2020 was also an unprecedented time for working parents; when UK schools closed and employees were told to work from home on 23 March 2020, the spheres of work and parenthood collided like never before until schools reopened for all in September 2020.
On 4 January 2021 we were once again faced with the same difficulties with the announcement of the third English lockdown. We have been told to work from home unless this is not possible and schools have closed again for all but key workers, meaning many employers and employees are once more trying to reconcile working and home-schooling. So, what are the options for employers and employees trying to strike this difficult balance?
Clearing up previous uncertainty on the issue, government guidance was swiftly updated on 5 January 2021 to confirm that employees who stay at home to look after school-age children are eligible for furlough. That’s not the same, though, as having a right to be furloughed – and there is no guarantee furlough will fit in with an employer’s plans.
Furlough benefits remain unchanged; employees can be placed on furlough for some or all of their normal working hours and, at the time of writing, the government has confirmed that it will contribute 80% of the wages of employees (based on a maximum wage of £2,500 per month) for hours not worked until the end of April 2021. Employers will only be required to pay wages, National Insurance Contributions (NICS) and pensions for hours worked; and NICS and pensions for hours not worked.
Employees with over 26 weeks’ service have the right to make one request for flexible working every 12 months, for any reason. Under the Flexible Working Regulations 2014 the employer is obliged to deal with the request in a reasonable manner. A request for flexible working can include changes to the place of work and changes to working hours. This can include start and finish times and weekly contracted hours.
The proposal introduced in 2019 under the Flexible Working Bill by Conservative MP Helen Whately to make flexible working the default, unless employers have a good reason not to do so, was not implemented into legislation, despite the announcement to the contrary in the 2019 Queen’s Speech.
Employers are therefore still able to rely on one of the eight statutory grounds for rejection of a flexible working request, but failure to do so or to deal with the request in a reasonable manner or notify the employee of the decision gives the employee the right to complain to the Employment Tribunal.
Other types of leave
In the short-term, all employees can ask for reasonable unpaid time off to care for dependants (i.e. children, parents, close family members or others cared for by the employee) in cases of emergency, and the breakdown of childcare arrangements can amount to such an emergency.
In general, all parents with one year’s continuous employment are entitled to take 18 weeks’ unpaid Parental Leave per child to be taken before the child’s 18th birthday – usually limited to be taken on one-week blocks and no more than four weeks per year.
It is also important to remember that the special leave rights given to pregnant employees and employees who have become a parent via birth or adoption remain. These include up to 26 weeks’ ordinary maternity/adoption leave, a further 26 weeks’ additional maternity/adoption leave, two weeks’ ordinary paternity leave and up to 50 weeks’ shared parental leave.
Finally, all employees are entitled to take paid annual leave in accordance with their contracts of employment and/or statutory entitlement.
The key: communication and agreement
In reality, many employers and employees are utilising a combination of some or all of the above options to work through the immense challenges posed by juggling home working and schooling; the key, it seems, is communication and agreement.
Many myths and fears regarding flexibility and home-working and its effect on management methods and productivity have been disproven over the last ten months. Employees have performed in the most challenging of circumstances, attitudes of employers have evolved, and new ways of working have emerged leaving many querying the rationale of a return to full time office-based working (although that is an entire topic on its own).
For those employers facing the particular challenge of employees working at home with school-age children, information is crucial. Encourage your employees to be honest about the challenges faced by them, seek their input and suggestions on how they can manage their work during this time of school closures, and actively work together for a solution to benefit all parties.
(Also published in North West Business Insider)