Childcare and the strikes - How should employers deal with absent parents? HR MAGAZINE

On 30 June teachers and civil servants in the UK took strike action over the proposed changes to their working conditions.  Many employers suffered from the fall out, as some working parents were unable to make alternative childcare arrangements. This resulted in them missing work to stay at home and look after their children. The strikes could be the first of many.  So how do employers deal with unexpected leave?

As with any unforeseen circumstances, a degree of flexibility and common sense must be required on both sides if employers and their employees are to limit the disruption.

If alternative child care arrangements cannot be made, in most cases employers would be ill-advised to refuse a working parent the day off.  This is because employed parents have the statutory right to reasonable unpaid time off to care for dependants when there has been an unexpected breakdown of child care arrangements and the leave is necessary.  The right also applies if the child is ill, injured, dies or is involved in an unexpected incident at school.  The right only applies to employees - irrespective of their length of service, or whether they work full-time or part-time or are employed on a permanent, temporary or fixed-term basis.  It does not apply to workers or the self-employed.  The amount of time off that the employee can take is limited to the amount of time which is needed to deal with the “crisis”.  Employees should give their employers notice of the reason for the absence as soon as reasonably practicable and let them know how long they expect to be away from work.

In this instance we were given good notice of the strike, so couldn’t we argue that it was not unexpected?  Unfortunately not.  In Royal Bank of Scotland Plc v Harrison, the EAT considered whether there was an "unexpected" disruption to child-care arrangements when an employee had two weeks’ notice that her child minder would be unavailable. The EAT confirmed that the word "unexpected" does not involve a time element - it is unexpected at the moment the employee learns of it.  In this case, the employee took reasonable steps to find alternative care, but failed, so the leave was necessary.  Had she not taken reasonable steps, then the employer could have argued that the time off was not necessary and therefore did not fall within the definition.   

Working parents should not suffer a detriment (such as disciplinary action for being absent) for exercising their right.  In a recent ET case - in Clarke v Credit Resource Solutions, an ET found that Mr Clarke was subjected to a detriment when he had one hour’s pay deducted, even though he was only away for half an hour to make emergency childcare arrangements.  He was also unfairly dismissed, as this was linked to his exercising his statutory rights.  The case highlights the need for policies to be implemented carefully, so that decision makers and managers have a clear understanding of them and can then use them effectively and fairly. A summary of this case can be found here.

In the current climate now would be a good time to dust off your dependant leave policies and make sure that all involved are aware of their rights and obligations.

Eleanor Rogers is an employment lawyer at Doyle Clayton Solicitors.

This article first appeared online at HR Magazine on 4 July 2011. You can view the article here.