Whilst we have another lockdown and schools are closed, our friend David Rushmere at Machin’s Legal Practice, talks us through what this means for working parents and how the rules of Furlough can be applied:-

There has been a lot of talk in the media about options that are available to parents who have childcare responsibilities including the possibility of furlough on either a full-time or flexible basis.

The guidance on furlough confirms that employees can be furloughed for this reason and it is irrelevant whether or not the employer has seen a downturn in business as a result of Covid. The Government website outlines that an employee is eligible for the grant and can be furloughed if they are unable to work, including from home, or working reduced hours because they have caring responsibilities resulting from coronavirus such as caring for children who are at home as a result of school and childcare facilities closing, or caring for a vulnerable individual in their household. However, in order to be eligible for furlough, employees must still meet the other eligibility criteria. Typically, this will mean that the individual must have been employed on or before 30 October 2020.

Eligibility is not the same as a right though and employees should bear in mind that they do not have a right to demand furlough.  A period of furlough must be agreed by both parties and so, if an employer is not willing to agree, then the employee cannot take a period of furlough at all.

Employers should also bear in mind that they do not have the right to place an employee on furlough if they do not wish to be.  Clearly, some parents will be able to find alternative forms of childcare and may not wish to accept the financial loss that comes from agreeing to be furloughed.  Best practice for employers is to discuss the option of furlough with employee-parents rather than simply telling them that they will be furloughed. Making a unilateral decision to furlough could expose the employer to a claim for discrimination.

If furlough is not available or cannot be agreed then an alternative for employees with ongoing caring responsibilities for children is to request a period of unpaid parental leave.  Parental leave is available for up to 18 weeks per child and employers do not have the right to refuse a request (although they can postpone it).  However, to request this leave, an employee will typically need to give their employer at least 21 days’ notice of their intention to take it and so this is unlikely to help parents who have immediate childcare difficulties.  This notice requirement could be waived by the employer and so it is open to both parties to agree for the employee to take parental leave with immediate effect but that will depend on the employer.  Equally, as parental leave will generally be unpaid, this is unlikely to be an attractive option for parents.

In the short term, if a parent finds their employer is averse to furlough and unwilling to waive the notice required for a period of parental leave, parents can take short periods of unpaid absence from work on the basis of their right to time-off to care for dependants.  This right permits all employees to take a “reasonable” amount of unpaid time off work to take “necessary” action to deal with particular situations affecting their dependants.  In the case of the schools closing without much notice, it is likely that this option will be available but it may not be sufficient to bridge the gap of 21 days’ notice required for parental leave.

Please contact David Rushmere if you would like more information about the issues raised in this article or any aspect of employment law.

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