Returning to Work: What if an Employee has Childcare Responsibilities?

It has become the new norm for many employees to work flexibly and at home while children are not at school or nurseries, and are not allowed to be looked after by friends or family during the Coronavirus lockdown. This has been extremely tough on many parents but is also positive in that we are likely to see a new found respect for flexible workers, and lots of companies are embracing the benefits of flexible working.

Now that the Government has started to lift the Coronavirus lockdown and businesses are slowly opening again, employers will be implementing plans to bring their employees back to the workplace. However, what are the options if employees are unable to return due to lack of childcare?

In all circumstances, employers should listen to any concerns which employees may have and should discuss the employee’s options on an individual and cases by case basis.

We have set out a number of options for employers to consider:

1. Where it is possible for the employee to work from home or flexibly, it would be reasonable for the employer to allow the employee to do so.
2. To enable the employee to combine work with childcare, the following should be considered:

• a. A change to the hours the employee works;
• b. A change to the times the employee works; or
• c. Staggered hours, flexi-time, job-sharing.

In the limited situations that the above is not possible, the other options are:

1. Agreeing an arrangement for the employee to take time off as holiday or paid/unpaid leave.
2. Agreeing that the employee may take parental leave or dependant leave (both of which are unpaid unless agreed otherwise).
3. Agreeing to continue or re-furlough the employee full-time or under a flexible furlough arrangement from 1 July 2020 (as long as they have been furloughed prior to 10 June 2020 for a minimum of 3 consecutive weeks). If an employee is currently on family leave i.e. maternity or shared parental leave, instead of bringing them back to work, you have the choice to use the furlough scheme (even if they haven’t been furloughed before).

All of the options above are likely to constitute a change to the employee’s contractual terms and conditions. Employers will therefore need to seek the agreement of the employee prior to implementing any of the above and should document any agreement in writing.

Employers should exercise caution in requiring employees with childcare responsibilities to return to the workplace, especially if the employee has informed the employer that they are unable to do so as a result of lack of childcare. Any disciplinary action or unfair treatment is likely to give rise to an indirect sex discrimination claim, or constructive unfair dismissal claim (based on a breach of the implied term of trust and confidence). In addition, the employer should give consideration to morale and retaining a valuable work force and try to accommodate flexibility where possible.

If you would like any employment advice, please contact our Employment Partner, Kate Brooks on 01202 057754 or email kate.brooks@ellisjones.co.uk.