This is clearly going to be front and centre of many employers’ thinking, given the news on Wednesday 18 March from the United Kingdom that schools are to close indefinitely for all but key workers and “the most vulnerable”. How are employees expected to combine new childcare duties with continuing to work either from home or at a work location?
The short answer is that there is no short answer and there is going to be no substitute for effective dialogue between employees and their employer. We suggest some questions that may help.
- Is the work location staying open generally so that the employee would otherwise be attending work? If the office is closed and employees generally cannot work from home, then an employee who has additional childcare responsibilities is in no different position than other employees who cannot work from home (unless the employer is moving staff into jobs that can be done from home).
Assuming that the work place is open, for an employee who now has additional childcare responsibilities we think the following is relevant:
- Is the employee’s job one that can be done at home?
- If yes, then is it one that can be done flexibly i.e. part time and maybe out of ordinary working hours?
- If yes, then the employer and employee may, at the appropriate time (see below) have a discussion about going to short time working, reflecting the employee’s expected work contribution during that time with pay being reduced proportionately.
- If the employee’s job cannot be done at home and the employee says that they cannot attend work full-time but they can attend part-time (and assuming that is practical) then again a discussion may be had at the appropriate time to get consent to some sort of reduced hours, and reduced salary arrangement.
If the employee cannot attend work at all, and his or her job cannot be done from home flexibly then this is going to be the toughest case because financial pressures are going to mount on many businesses and inevitably some are going to have little option but to consider redundancies to balance the books, and in all probability staff who are unable to work at all are going to be more at risk than staff who are able to continue working. We are not suggesting that employers should come to that conclusion directly, and there are good reasons to look at the facts in each case. For example, if there are key staff who will be needed when the business reopens, the employer may choose to carry the load to be able to reopen effectively at the earliest opportunity. Employers are going to have to be careful to ensure that working mothers are not disproportionately affected by any such salary reductions, or other measures implemented, as the courts will usually assume that female employees are more likely to have childcare responsibilities. In short, employers will need to carefully consider the practical and legal risks that could arise from short term measures designed to keep business going as an alternative to redundancy. This would also involve consideration of the costs of redundancy, if that stage was reached, particularly if an employer has a contractual redundancy scheme providing enhanced pay outs.
The second issue is when employers can move to have such discussions. Under English law all employees, regardless of length of service (workers and self-employed individuals are excluded), have the right to unpaid time off work to make arrangements for childcare. This means employers will have to allow employees a day or two at home unpaid to make alternative arrangements. Many employers will have supplemented these arrangements with emergency policies of their own, some of which may offer paid leave, and these too need to be honoured. Beyond that however employers will face a difficult balance between moving quickly to preserve their financial position and being seen to be too tough on their staff who through no fault of their own are unable to work in these difficult times. What makes this all the more difficult is that behind this all lies the inevitable spectre of mass redundancies, and so both employers and employees may need to have some difficult discussions to avoid even tougher discussions.
For a consideration of these issues in the US context, please contact us.
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