Keyworkers’ children have been permitted to attend school throughout the pandemic and this will continue. Keyworkers are those in the following categories:
- Health service - frontline health and social care staff (doctors, paramedics, nurses etc)
- Education - teaching staff, nursery staff, social workers
- Food - anybody who involved in production, distribution, sale of food
- Public safety - police, fire and rescue, armed forces, prison and probation staff, border security
- Transport – (road, air, rail etc)
- Utilities – those required to retain supply of gas, water, electricity etc
Phased return to school for some other children
A phased return to school is expected from 1 June for children in early years and Reception, Year 1 and Year 6 (in primary school), and secondary and further eduction students facing key exams next year may also have some face-to-face contact with teachers before the end of this academic year. This leaves a vast number of year groups and students potentially not returning to school until September 2020.
Whilst the government has cited an “ambition” for all primary school children to return to school before the summer for a month “if feasible”, parents are not holding their breath, and other secondary school pupils have not been mentioned at all.
Businesses, therefore, need to strike a balance between providing flexibility and support for those parents and continuing to operate as effectively as possible. There are a number of options you can offer staff with children at home. The key is to communicate clearly with staff and ensure that everything is agreed with line managers/the business, so that expectations are clear:
- If they are still able to work and deliver their normal outputs, whilst balancing caring commitments, e.g. by working at different times of the day or different days to normal, then they should do so and receive normal pay.
If you have concerns that an employee will not be able to work normally or at all while at home with their children, e.g. because they have very young children or children with additional needs, discuss this and try to be helpful and flexible. The option below may be useful here (i.e. reduced hours for reduced pay).
- If they can only work reduced hours (and deliver reduced outputs), due to caring commitments, they should do so and receive prorated pay.
- Staff may want to take paid holiday, which should be approved and recorded in the usual way.
- Staff can be furloughed if they are unable to work due to caring commitments.
- Staff may want to take dependants’, parental or other unpaid leave. Please note that holiday entitlement would continue to accrue during this time.
Dependants’ leave (employer policy or statutory regime)
While schools are closed, employers should follow any policy they have for emergency leave for employees who need to care for dependants and cannot work from home. If employers do not have such a policy, the statutory regime will apply.
Under the statutory regime:
- employees can take reasonable time off where there has been an unexpected disruption to the care arrangements for a dependant;
- dependants include an employee’s spouse, civil partner, child, parent or a person who lives in the same household as the employee (not a tenant, lodger or boarder);
- time off is unpaid; and
- the purpose of the time off is to make provision/arrangements for care, rather than to provide the care yourself. However, given social distancing and the unavailability of grandparents and closure of childcare facilities, parents may have no other option but to look after their children themselves. It might, therefore, be “reasonable” for an employee to take dependants’ leave for the duration of school closures.
This is another type of unpaid statutory leave and is available for all parents with a child/adoptee under 18 years old.
Parents are entitled to up to 18 weeks’ unpaid leave per child/adoptee, of which only 4 weeks can be taken each year (in weekly blocks).
If extended dependants’ leave is available while schools are closed, employees are unlikely to need to use parental leave.
Potential Tribunal claims
If an employee is subjected to any “detriment” or dismissed because they have requested or taken dependants’ or parental leave or if they are unreasonably prevented from taking leave, they can bring a Tribunal claim. (The 2-year qualifying period for unfair dismissal) does not apply in such instances.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice