This article was first published before the Government extended the Coronavirus Job Retention Scheme to include carers
With the coronavirus crisis affecting the UK as a whole, and following the closure of UK schools from 23 March 2020, increasing numbers of workers are having to request time off work to care for dependants.
Employers have to give their employees a reasonable amount of time off work to deal with emergencies, such as caring for a relative who is ill or for their children if their school has closed.
Many employers are allowing parents to work flexibly, to try to manage both work and childcare during the Covid-19 crisis. But it helps for employers to understand the employment law issues when dealing with dependants’ leave.
Furloughing workers to care for dependants
On 4 April, the Government issued specific guidance expanding the Coronavirus Job Retention Scheme to allow employees to be furloughed to carry out caring responsibilities.
The guidance states that workers who are unable to do their jobs because of caring responsibilities resulting from coronavirus can be furloughed. In practice, this means parents whose children cannot attend school could be put on furlough rather than taking annual leave or unpaid leave to look after them.
Paid time off to care for dependants
Whether the employee needs to care for sick dependants or they need to stay at home to care for their children following the mandatory UK schools’ closure, their rights to take paid time off will depend on their employment contract.
Employers are advised to check their employees’ contracts to confirm their position. If the employment contract allows paid leave to deal with dependant emergencies, it would be a breach of contract not to allow paid time off in accordance with its terms.
If the term is discretionary, employers should think about whether they will want (or be able) to offer paid time off now that all schools are closed.
Note that a right may have become contractual through custom and practice if employers have always paid for time off for dependants and employees have a reasonable expectation of being paid.
Where the employee is not entitled to paid time off to care for dependants, they should still be permitted time away on an unpaid basis.
Unpaid time off to care for dependants
Workers have a statutory right to take unpaid time off work to care for dependants or to deal with emergencies. This allows for a reasonable amount of unpaid time off necessary to deal with unexpected events involving their dependants.
Such instances would include having to provide immediate care for a dependant who is sick or where a school has closed at short notice.
The impact of the time off on the employer is of no material relevance to the employee’s right.
This right is, however, limited to a ‘reasonable’ amount of time, and is not indefinite. The employee would ordinarily be expected to arrange for alternative care where possible.
To qualify for the statutory right, the employee must notify their employer as soon as reasonably practicable giving the reason for their absence and how long they think they will be away.
Employees who are refused permission to take the time off or who are subjected to a detriment for doing so can bring claims in an employment tribunal.
They can also bring claims for automatically unfair dismissal if they are dismissed for exercising the right.
As an alternative, parents might also have a statutory right to unpaid parental leave.
Self-isolation due to sick dependants
Under current government guidance, anyone who lives in the same household as someone showing symptoms should self-isolate for 14 days.
If an employee has to self-isolate because they live with or have been caring for someone with symptoms of Covid-19, you should discuss options to work from home, if possible.
If they are unable to work, they may be eligible for sick pay. Check their employment contract to confirm their entitlement, whether to contractual or statutory sick pay.
Risk of discrimination
Employers are advised to proceed with care and ensure they act consistently between employees. Inconsistent treatment risks indirect discrimination claims where there is no good reason.
Need assistance?
Employers are advised to keep the government guidance under review and take professional advice about any workforce concerns.
If you are concerned about the employment risks relating to the coronavirus and mitigating its impact on your workforce and business, we can help. Our team of employment specialists can support with advice on specific issues and developing a strategy to manage the ongoing risk and aftermath of the Covid-19 crisis. Speak to our experts today.
Last updated: 23 March 2020
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals