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Home > News > Lockdown 3.0 – somethings gotta give: staff requesting furlough for childcare

Lockdown 3.0 – somethings gotta give: staff requesting furlough for childcare

12 February 2021 | Cecily Donoghue

2021 is well and truly with us and most parts of the UK are dealing with further periods of lockdown and restrictions. The vaccine roll out is thankfully underway but this forms part of a much longer process.

Many working parents and carers have been faced by a further period of school closure and the need to balance working from home (or attending work) and home-schooling. Following the Prime Minister’s statement that schools could reopen 8th March 2021 at the earliest, this juggling exercise is set to continue.

Regardless of an employee’s home situation and the support that may or may not be available, it is understandable that this is an extremely difficult position and many working parents are struggling. It is just not possible to work and home-school simultaneously.

At the same time, many businesses are struggling to survive during the ongoing restrictions. Even if things are going well, the business is still dependant on all staff working hard in order to keep the business alive.

Some workers have requested to be furloughed (either fully or flexibly) in order to cope with these demands. There are also increasing calls on Government to legislate and provide a “right to furlough” as well as paid carer’s leave, so what are the current legal obligations and practical points that an employer needs to consider:

If a member of staff requests furlough due to childcare, what do I do?

  • It is a business decision who to furlough and when. Staff may request to be furloughed but there is no obligation on an employer to accept their request.
  • Just because you’ve furloughed one member of staff does not mean that you have to do the same for another, but clearly consistency is important when determining fairness and ensuring that you’re not discriminating against staff.
  • You can only furlough staff who were employed by the business and on payroll on 30th October 2020. If they started with you after this date, then they are not eligible for furlough.
  • According to the Gov Guidance, the furlough scheme is intended to be used if the employer “cannot maintain their workforce because their operations have been affected by coronavirus”. However the most recent guides confirm that staff can be furloughed if they have caring responsibilities arising from Coronavirus which mean that they are unable to work (including from home), or are working reduced hours. The guides specifically refer to home-schooling so it is entirely understandable that workers are asking their employers to furlough them.

Ultimately, it is a business decision who to furlough and if you need staff to continue working then you can refuse their request. However many staff will make this request out of necessity and a real conflict between working and their childcare responsibilities to it is vital for both staff and employers to try and find a balance.

What can staff do if an employer refuses their furlough request:

If parents or carers have no choice and just cannot work whilst caring then they can request:

  • Holiday – often used as a way to flexibly work around school hours / commitments, particularly if they have someone to share the responsibilities with.
  • Unpaid parental leave – Employees with one years’ service who have responsibility for a child, have the right to request statutory unpaid parental leave for up to 18 weeks for each child up to their 18th It is usually limited to 4 weeks’ leave per year unless the employer has waived this rule.
  • Unpaid time off for dependants – Employees also have the right to take a reasonable amount of unpaid time off in an emergency to support a dependant who is ill or needs care arrangements made, dies or when there is an unexpected interruption in care. Whilst not applicable for ongoing care arrangements when schools have closed, this can be used temporarily if there is an unexpected change or disruption to care.
  • Flexible working – formally or informally – staff may request to reduce or change their hours (permanently or on a temporary basis). There is a statutory right for staff with over 26 weeks service to make such a request and when doing so, they should set out the changes requested, the reasons why and supporting details explaining how this can be managed or implemented within the business. Employers should properly consider a formal flexible working request but can refuse the request in certain circumstances. However it is best for all options to be properly discussed and explored before making a decision.
  • Sickness absence – with the additional pressures and stress, staff may become unwell and take time off.
  • Resignation – if staff are not able to balance the stresses of working and home schooling they may decide to resign and leave.

The practical reality and how to best support staff:

This is an unprecedented and difficult position for everyone. Open discussion is the best way to implement a system that can work for both businesses and staff. Employers should do all they can to support staff during this time – happy staff are more productive and engaged.

Unfortunately, there isn’t a one size fits all solution, as each situation will be different and it may also change the longer the lockdowns go on, or if they repeat in future.

Each request will also depend on the team and current workloads etc. The timing of the request is also important and unfortunately many employers often refuse a flexible working or furlough request simply out of a concern that everyone else will ask for such flexibility. Whilst this is a valid concern, this isn’t the only factor to consider.

An employer can only assess a request at the point at which it is made with the team currently working or the workload that it has. Some top tips:

  • Communication is key so ensure there is an open discussion with staff to offer support and listen to their concerns.
  • Whilst an employer may not be able to agree to the full scope of a request, see if there’s a middle ground that can be reached. Remember that if the employee goes off sick or resigns, then the business will have lost that skillset and it will take time and money to recruit and/or train up a new member of staff (or absorb those responsibilities elsewhere).
  • Flexible furlough can offer the best flexibility in terms of time, but crucially financial support for the business – flexibility has never been so financially affordable.
  • Some business are offering paid carers leave (up to 10 days paid leave per year in some cases). There is no legal requirement to do so and we appreciate that this may not be possible for all businesses, but flexibility on both sides will lead to successful outcomes for everyone.

Remember that the pandemic may have put the situation into sharp focus and crises mode, but there are further and ongoing calls for Government to implement further flexibility. In 2019 there was even proposed legislation that would have required employers to offer flexible working for all roles by default, rather than individuals having to make a request for flexibility. Whilst this Bill didn’t proceed, it’s likely to be the first of many further changes in future and this is certainly a point that job applicants are looking for employers to have in place. It’s therefore a critical future planning consideration and something that every business should be considering both now during the pandemic but also for the future.  

Expert employment law advice

If you have any questions about the furlough scheme, or any other employment issue, please contact our specialist employment law solicitors by calling 0117 906 9400 or email hello@gl.law 

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

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