With the announcement that schools in England, Wales and Scotland would be closing for most pupils with effect from Friday until further notice, many employers and employees will be left wondering how to juggle working whilst caring for (and attempting to homeschool) young children.
Although we can all appreciate the rationale for this decision in light of the public health emergency posed by the corona virus, for many this will be disruptive at best, and, for some, could even put their livelihoods at risk.
As a solicitor, I am fortunate that I am able to work from home and have a supportive employer who recognizes the unprecedented challenges the current situation poses, but with one child who would normally be at school, and another who would normally be at nursery, I have found myself asking the question which many working parents will now be asking themselves, how best to manage this situation - especially given that this could go on until the new academic term in September.
What can and should employers be doing in response to make sure their businesses continue to operate in these difficult circumstances? From a legal perspective, what rights do employees have?
Any employee with more than 26 weeks' service has a legal right to make a formal flexible working request to vary their working hours, the times when they are required to work or their location. Employers must deal with requests reasonably and under the statutory scheme have three months to make a decision.
Clearly, in the current circumstances, decisions will need to be made much faster than under the statutory scheme. Employees may need flexible arrangements to start immediately, or certainly from Monday as the school closures take effect.
If employees are unable to fully perform what is required of them under their contracts, for example, if they are simply unable to work their full contracted hours, employers would, of course, be entitled to reduce their pay on a pro rata basis.
Practically, it is important for employees to start a dialogue with their employers about any changes they might need as quickly as possible. It might be helpful for them to come armed with suggestions about how they intend to deal with any potential issues or objections the employer might have to their proposals. Equally, employers may want to be proactive in approaching the workforce and being clear on what sort of support they are prepared to offer to employees who find themselves in this situation.
Given these unprecedented circumstances, I suspect most arrangements that "flex" the existing working relationship will come about outside of the formal statutory flexible working scheme, and employers may well be prepared to give employees a lot more leeway than they might normally agree to.
In practice, a balance will also need to be struck between accommodating employees who are facing challenges because of the school closures, and other employees who don't have child care responsibilities; these will need to be handled sensitively to prevent discontent amongst staff who may feel that some staff are getting "special treatment", particularly once the immediate crisis has passed.
A second option for parents would be to take a period of parental leave. This has been a popular suggestion put forward by some media commentators when it became clear that school closures were imminent.
Under these provisions, employees who have more than a year's service have a statutory right to take off up to 18 weeks' leave to care for a child who is under the age of 18, although only 4 weeks can be taken in any given year. Terms and conditions are preserved during parental leave and, in most cases, employees have the right to return to the same job after they return. They are also protected from any detrimental treatment or being dismissed because they have taken parental leave.
Whilst this sounds great in theory, this is unlikely to be a solution for most employees. The biggest problem is that this leave is unpaid. This is a real problem as most employees will not have the financial resources to take unpaid leave for significant periods of time. The TUC has begun a campaign for emergency legislation to provide for parental leave on full pay during the current crisis.
Secondly, employees must give 21 days' notice; again, this may not be practical given the speed at which this situation has developed. Thirdly, if the situation persists for as long as it is feared, four weeks will not be long enough.
Of course, some employers may have their own policies which are more generous than the statutory scheme and employees should check the position carefully. For example, some employers might allow for periods of paid leave, or allow staff to take more than four weeks unpaid leave. Even if they don't, some employers may want to implement something now to help support staff. In this case, it is important to be clear on the parameters of the scheme, and, whether this is intended to be a permanent arrangement or a temporary one as a specific response to the current crisis.
This is another statutory right available to all employees to take time off to care for their dependents. It is often called "emergency dependent leave" because it is designed to allow employees to take a short period of time off to deal with unforeseen issues or disruption to childcare. The purpose is to enable employees to make the necessary arrangements for childcare.
Whilst this might help an employee if they need to take time off on Monday when their child's school is closed for the first time, it is highly unlikely that this would cover an extended period of time off to provide childcare. In addition, the starting point is this time off is also unpaid - which poses the same issues as for parental leave.
Again, employers may have more generous arrangements so it is worth checking the position.
Annual Leave/Other Leave
Of course, employees always have the option of taking a period of paid annual leave or attempting to agree a period of unpaid leave with their employers.
Employees would need to request annual leave in the normal way under the employer's normal holiday request procedures. This might prove difficult for employers to manage if a large number of employees all try and take annual leave at the same time, and employers need to be careful that requests for leave are dealt with in a non-discriminatory way.
The lines of communication need to be open between employers and employees.
Employers and employees will need to work together to find solutions based on individual circumstances; in practice this is likely to be a combination of agreed flexibility regarding working hours, times and duties and employees being permitted to take leave (paid or unpaid).
In this highly unusual situation employers might want to try and keep employees "at work" rather than formally on leave - whether paid or unpaid - even if this means accepting that their productivity will drop due to their childcare commitments.
Much will depend on the specific circumstances, but I would encourage managers to have open and honest conversations with their employees immediately on these issues.
It is a worrying and unsettling time for everyone, with employers facing severe economic challenges and many employees fearful for their jobs. Employers will be looking for ways to keep their businesses running, and employees will be looking for reassurance and - most fundamentally - practical solutions and confirmation as to how, if at all, their pay will be impacted as a result.
Employers that fail to reassure employees and address these problems head on now may well find themselves with increasing numbers of employees reporting in sick or self isolating as a way of dealing with childcare commitments.
It is worth remembering that once the corona virus has passed - as it will - employers will need engagement from their employees to rebuild and recover.
Schools in the UK are to shut from Friday until further notice as a response to the coronavirus pandemic.