The Government announcement of school closures for all apart from vulnerable children and children of key workers will have enormous implications in the workplace. The situation is changing daily, and many businesses and employees do not know how to handle or what to expect in the coming days and weeks. Flexibility and adaptability are paramount if you and your business are to survive.
With the official guidance not to leave children in the care of grandparents, many parents and carers will have very little choice but to stay at home in order to provide childcare. However this will have a huge financial impact on families because, unless they or someone in their household is suffering from symptoms, they will not be entitled to Statutory Sick Pay. This leaves employees dangerously without support. This will mean that staff will need to take emergency leave to care for their children, which in most cases is also unpaid.
Employees have the statutory right to take unpaid leave for dependants. The important thing here is that the right only applies to employees. Workers (i.e. those in the gig economy and in zero hours contracts) and the self-employed are excluded. There are no qualifying requirements and the right is available from day one. However, armed forces and members of the police are excluded from this right. The right applies to both parents if the requirement is that both parents need to take time off to care for a dependent. The legislation is prescriptive, and anyone making a request will have to rely on the provision which covers the requirement to “deal with unexpected disruption”. The important point to note is that case law provides guidance that the right to time off to provide assistance does not allow employees to take time off to provide personal care for a sick dependent beyond the reasonable amount necessary in order to deal with the immediate crisis. Therefore applying this guidance to the school closures, parents and carers need to be mindful that the right does not extend to providing continuous care for a dependent, but rather to simply deal with the immediate crisis, which translates to making alternative arrangements. The BEIS Guidance states that this could include arranging to employ a temporary carer or leaving the sick child in the care of relatives, but not to take additional or ongoing time off to care for the dependent themselves.
Further, whilst the statue does not specify the amount of time an employee is allowed to take off extracts from Hansard from when the bill was passing through parliament suggests that parliament envisaged that the right be “limited to urgent cases of real need… and that the right will not enable a mother to take a fortnight off whilst their child is in quarantine”. In most cases, whatever the problem, one or two days will be the most that are needed to deal with the immediate issues and sort out longer term arrangements if necessary. It is therefore apparent, both from the intention from the legislature when the bill was being debated and how that has been applied in practice by the appellant tribunal the intention was simply to enable a parent to take a few hours or up to one or two days emergency leave in order to make the necessary arrangements for alternative care. The coronavirus situation is unprecedented and unchartered territory i.e. it remains to be seen how employment tribunals will deal with the situation where an employer takes action against an employee who is simply unable to make alternative arrangements and continue fulfilling his or her contractual duties.
Employers should by now have considered homeworking and this will be even more relevant to parents who have to stay home with their children. Homeworking policies should be in place so that staff understand what the businesses expectation is and so that the business has the power to discipline those who fail to adhere to those expectations. For those businesses that will be providing homeworking equipment such as laptops and mobile phones it is imperative that the relevant policies are in place for this as well.
If you are an employee and you are unsure of your options, or if you are a business owner looking for advice on how to stay ahead of the coronavirus curve call 0113 284 5000 or email Yunus.lunat@isonharrison.co.uk for specialist employment advice. Yunus Lunat is an Employment Law expert who has been featured on many media outlets as a specialist in his field. He has most recently been on several expert panels for BBC Radio Leeds in relation to this crisis.
