Strike season and childcare – how to come out on top - as published in HR Review

The latest tube strike may have been called off, but there is another strike planned just around the corner. This time, teachers plan to walk out on 26 March over pay, pensions and conditions. They blame Michael Gove’s persistent refusal to address their complaints.

In the past we have seen that teachers’ strikes can be potentially more disruptive than strikes in other unionised workplaces. In June 2011, teachers and civil servants in the UK took strike action and reportedly, many employers suffered from the fall out, as some working parents were unable to make alternative childcare arrangements. This resulted in parents missing work to stay at home and look after their children. So, how should employers treat staff who need to take time off to care for their children or deal with unexpected leave?

As with any unforeseen circumstances, a degree of flexibility and common sense is 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 disruption or breakdown of child care arrangements and the leave is necessary to deal with that disruption of breakdown of arrangements. 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, otherwise the statutory right does not apply.

In this instance we have been given good notice of the strike, so couldn’t we argue that it was not unexpected?

Unfortunately not. In a case with Royal Bank of Scotland Plc and its employee, the EAT (employment appeals tribunal) 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 and she was not entitled to time off.

Working parents should not suffer a detriment (such as disciplinary action for being absent) for exercising their statutory right. In a different case with Credit Resource Solutions, an employment tribunal found that the employee 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. In another case with Npower Ltd, its employee was awarded £1,000 when she was subjected to first stage disciplinary action for having taken time off under the company’s leave policy.

To limit the disruption further strike action may bring, consider the following:

• Consider your dependant leave policies – are they up to date, sufficiently clear and fit for purpose?
• Make sure that all involved are aware of their rights and obligations under the dependant leave policies.
• Inform your workforce of planned strikes, so that they can start to make childcare arrangements.
• Ensure that the policy is enforced equally for all employees.

This article was originally published in HR Review at http://www.hrreview.co.uk/analysis/analysis-diversity-equality/strike-season-and-childcare/50592