Returning to work (part 1) - Childcare or living with a vulnerable person

Managing the needs of your business and workforce whilst navigating the ever-changing legislation can leave you feeling overwhelmed. If this describes your state right now … you are not alone! Many of our clients have come to us with questions about how to manage certain situations wanting to find fair and legal solutions. This summary will help guide your business through some of the more challenging scenarios.

This article covers a couple of hot topics around managing employees back into the workplace when they have childcare responsibilities, or for those who live with others who are vulnerable.

For employees, these two scenarios present conflicting challenges, such as juggling the requirements of their job with the needs of their dependants, which may of course be impacted by factors outside of their control such as school closures. Whilst those living with people considered during the course of this pandemic as vulnerable, may have concerns about unnecessarily exposing those around them to greater risk of infection.

Whilst both situations may be equally difficult to manage for both employees and employers, here are four initial recommendations for employers:

1. Review the situation with your employees. Have an open conversation with employees about their personal situations, understand their difficulties, recognise their concerns, understand if their availability may be impacted, and in the case of childcare, gain an appreciation for the situation regarding their partners and/or support networks.
• With regards to a clinically vulnerable person, if employers are unsure of the medical risks, evidence such as a shielding certificate /medical certificate/letter can be requested.
2. Support the Government’s protocol of home working where possible. Extra steps may need to be taken to assist with the facilitation of this.
3. Consider furlough. Depending on the situation a business is faced with, furlough or flexible furlough may or may not be possible. You should not also automatically assume that an employee would want to be furloughed. If furloughing is a possibility, it should be discussed, but employers aren’t obliged to furlough staff.
4. Consider alternatives. Where Furlough is not an option, consider whether any of the following may support:
• A change to working days/times. Ideally, this solution should balance the needs of both the employer and employee.
• A change to the employees work (if plausible) allowing them more readily to work from home.
• Use of holiday entitlement. To be required through the normal channels.
• Consideration of unpaid leave. This must be a request of the employee and can solve a problem for a temporary period of time. The employer must also be happy for this to occur.
• Employees may request flexible working. Subject to statutory guidance, and this request can be denied by the employee, but proper consideration is required.
• In the case of childcare, parents are legally allowed to take 18 weeks of unpaid leave during the course of the child’s life, or up to 4 weeks a year where care is required by the child. Always check your company policies and procedures as parental leave is only normally available to employees who have one or more years continuous service with their employer.
• In the emergency case of needing to care for a dependent, employees have the right to take unpaid time off work. The length of leave should not normally be more than a few days, but this is dependent on the situation. Further terms and conditions may apply, so always refer to your company’s policies and procedures for clarification.

Ultimately, employers will need to be able to demonstrate that they have considered all options and are open to suggestions from their employees when they are faced with the challenges outlined above. Additionally, it is important to ensure that employees are not discriminated against because of their sex. In the case of childcare needs, businesses not fully appreciating the needs of their employees, particularly women, who are statistically more likely to be primary carers for their children, may fall foul of discrimination standards.