Do we need to pay an employee who cannot work because their child’s school is closed?

At 20:00 on Monday 4 January 2021, the prime minister, Boris Johnson, announced that a new lockdown in England would commence immediately and last until at least mid-February 2021. Schools will close to most pupils, and instead offer online learning until after February’s half-term break. This means that many working parents will now face an extended period of trying to juggle the competing demands of their job, childcare and home schooling. What does this mean in practical terms for employers and their staff?

Which pupils can attend school or college?

Official guidance specifies which children and young people are entitled to attend school or college. In summary:

• Vulnerable children: including those with who have a child in need plan, a child protection plan, are a looked-after child, have an education, health and care plan, or who have been identified as otherwise vulnerable by educational providers or local authorities.
• Children of specified key workers working in the following sectors: health and social care, education and childcare, key public services, public safety and national security, some local and national government, production, distribution and sale of food and other necessary goods, utilities, communication and financial services, transport and border.

Children and young people who do not meet these criteria will be offered online learning. 

What does the employment contract say?

The starting point is to check the contract to see if this contains any provisions, which:

• Allow the employee to take paid dependant care leave
• Expressly deal with the interruption of childcare

If so, these provisions should be followed.

What are the employee’s individual circumstances?

In the absence of such express terms, much of the practical (as opposed to legal) answer to this question will depend on the individual circumstances, including:

• Is the child old enough to be left unsupervised and, if so, for how long?
• Does the child have any physical or social special needs?
• Is there anyone else who can share the care of the child eg a parent, partner, or a member of the extended household or support bubble?

Answers to these questions will greatly assist the employee and their line manager in discussing the practicalities and agreeing a plan of action.

Is it possible for the employee to work effectively from home?

If the employee is able to work from home, then this may be most appropriately dealt with by the employee and the line manager having an informal chat about the practicality of the employee working from home, while simultaneously having to provide childcare and supervise online learning.

It may be possible to agree on some degree of temporary flexible working. For example, allowing an extended working day, or for some work to be done in the early mornings, evenings and/or at weekends. Consideration could be given to whether the employee can be reassigned to alternative duties, which can be performed remotely.

To ease the pressure, by allowing the employee to work fewer hours, it may also be possible to agree to a period of part-time furlough leave, or some annual leave (see below).

What if it is not practical for the employee to work effectively from home?

In the event that it is not practical for the employee to work from home while supervising children who are young or have special needs, then other options to consider include:

• Unpaid dependant care leave: This ‘day one’ right is designed to help employees to take unpaid time off to deal with unforeseen events regarding their dependants (including their children). An employee can take unpaid time off to take whatever action is necessary because of the unexpected disruption or termination of arrangements for the care of their child (which includes school closures). In usual times, the amount of unpaid dependant care leave that an employee can take is no more than a few days, usually to arrange alternative care. However, we do not live in usual times, and we expect tribunals would be sympathetic to the need for a longer period of unpaid dependant care leave if there were no alternatives open to the employee when their individual circumstances, including the availability of any alternative carers or care provision, are considered.
• Furlough leave: Employees can be furloughed because they are ‘unable to work because they have caring responsibilities resulting from coronavirus, including employees that need to look after children’. An employer does not need to be facing a wider reduction in demand, or be closed, to be eligible to claim for these employees. See our furlough leave FAQs for further details.
• Unpaid parental leave: Parents of a child under 18, who are employees with one year’s service, can take up to four weeks’ unpaid parental leave per year (up to a maximum of 18 weeks in total). Strictly speaking, they must give you 21 days’ notice, but you can voluntarily waive this requirement.
• Taking annual leave: The employee could take some annual leave to cover times when alternative childcare is not available. Holiday could be taken either be in single blocks of time, or with the employer’s agreement broken into a few days holiday each week, to allow the employee to work fewer hours.
• Reverse time off in lieu: it may be possible for the employer and employee to agree that the employee will be granted some paid time off now, which will be made up the time later in the year (eg by working unpaid overtime).

A final word about the importance of mental health and wellbeing

The next few months are going to very stressful for both managers and workers. Everyone is trying to make the best of a bad situation, and do the very best they can to juggle the competing demands they face. This may have a negative impact on people’s mental health and wellbeing. The NSPCC has some hints and tips for parents working from home and our article, How can an employer support staff mental health and wellbeing during and after lockdown? considers the issue in more detail.