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All schools in the United Kingdom are now closed “until further notice” in response to the escalating Coronavirus outbreak. The only exception is vulnerable children or children of key workers. I heard on the radio that this is the first time a total closure like this has ever happened, so we truly are facing unprecedented times (not for the only time during this crisis!).

So what now?

I am afraid I can’t help with the question of how to entertain and educate children while at home, or how to maintain the sanity of parents while they are there (though as a mother of two small children I’d welcome any tips!). What I can do though is give a few thoughts about what employers might be able to do when faced with a potentially large number of staff who suddenly have a childcare void.

The needs of the situation will undoubtedly vary depending on the nature of your business and the type of work carried out by affected employees. Similarly, the age of the children concerned may influence what steps can be taken (for example, a younger child or a child with additional needs may require greater care than secondary age children, and so affect how much an employee is able to work with children around).

As with many things to do with Coronavirus, you are unlikely to have a policy in place which covers this particular situation (though you may want to think about developing a temporary policy setting out your proposed approach). Where possible, it is likely that a pragmatic and flexible response, perhaps emphasising trust where possible, will help employers and employees alike best balance the need for work to be done and for children to be looked after. Here are a few possibilities:

1. Many staff who are able to do so will already be working at home (following the Prime Minister’s statement on 16 March 2020). In normal circumstances, employers usually have policies which state that employees are not allowed to work from home while providing childcare. However, as we know, these are not normal times. You may therefore want to allow these employees to continue to work from home while looking after their children, albeit with the expectation that as far as possible they will work their normal hours and keep on top of their work.

2. Where an employee can work from home, but it is not possible for them to work with children around, it may be an option to agree to a flexible working arrangement to allow the employee to work around their new childcare commitments. This need not take the form of a formal flexible working request, and could be temporary eg for the duration of school closures. This could include, for example, working at different times of the day (evenings or earlier in the morning) or agreeing that an employee can (temporarily) reduce their hours, with a corresponding reduction in pay.

3. You may wish to exercise your discretion to pay employees in full for a period of time, accepting that they won’t necessarily be able to work their contractual hours in full. However, with reports suggesting schools may be closed for several months, it would be advisable to keep this under review.

4. Employees have a statutory right to take a “reasonable” amount of unpaid time off to care for dependents. Some employers may offer pay for a few days for this type of leave. However, the statutory right is normally intended to cover short periods of absence. So while it may be useful for a few days, for example, while employees get their children settled into a new routine at home, it is unlikely to be a long-term solution in the current crisis.

5. You may want to encourage the employee to take paid annual leave, if they have any remaining. Most employees, however, will not have sufficient holiday entitlement to cover the potentially lengthy closure of schools. This is where imaginative arrangements could be agreed upon. For example, if employees can split “childcare shifts” with their partners, they might be able to take a few days’ holiday per week to cover the time when they are looking after children, and then work the remainder of their hours as normal.

6. If it is not possible to find a solution which enables the employee to carry on working, you could permit them to take the time as unpaid leave. Parents with a child under 18 are entitled to up to 18 weeks’ unpaid parental leave per child (though in the circumstances you may want to waive the need to give notice for the time being). 

This is undeniably a tricky scenario to manage: no one has ever had to face it before, no one knows how long school closures will last and there are very few childcare options that now remain open (even people who might have been able to call on grandparents are unlikely to be able to do so because of advice on social distancing). Patience and flexibility are undoubtedly going to be needed wherever possible to come up with and adjust to new working practices which support both business and employee needs and which, wherever possible, reflect and underpin the culture and ethos of the workplace. And given that government advice is changing on a near daily basis, it is advisable that any arrangements agreed with employees are expressed as temporary and are kept under review, so as to allow them to evolve as things develop. As is always the case, but now more so than ever, communication is key.

We appreciate that this is a stressful and worrying time for our readers (and for so many), and we do hope that you find the guidance contained in this blog useful. If you are interested in formally engaging the firm and require further tailored advice in relation to what is covered, please contact Amy Wren, or your usual contact at the firm on +44 (0)20 3375 7000. 

Please note that our Employment team is currently experiencing a very high volume of queries in light of the COVID-19 outbreak, which unfortunately means that we are unlikely to be able to respond to informal queries of a more general nature, given the need to prioritise urgent queries from existing or new clients. We hope this blog is, however, helpful in addressing some of those more general queries.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, March 2020

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