Last reviewed 23 September 2020

Schools have reopened across England as an attempt to kickstart the nation back to some form of normality. Since pupils of all ages and year groups have been allowed to return to school, parents have also been able to gradually return to work. Opeyemi Ogundeji, researcher and employment law writer at Croner-i, explores this in more detail below.

The next puzzle piece in the coronavirus jigsaw pertains to parental rights where employees must keep their children at home because those children are self-isolating. This is usually after someone in their year group has tested positive for the virus so the entire year must quarantine for 14 days.

Do parents need to self-isolate?

The Government has made it clear that a parent will not be classed as “self-isolating” even if their child has been asked to do so — unless their child exhibits symptoms or tests positive for the coronavirus; they themselves are experiencing symptoms or have tested positive; they have returned from a non-quarantine exempt country abroad, or they have been told by the NHS to self-isolate.

The normal rules on self-isolation will apply if a parent in your workforce is self-isolating. Statutory Sick Pay (SSP) will be payable to eligible employees, regardless of an individual’s parental status, except in cases where self-isolation is necessary as a result of travel to a non-quarantine exempt country.

Employment rights for parents

Where a parent is not self-isolating, they are legally entitled to unpaid time off for dependants. The employment right to this time off is intended to be for unforeseen emergencies only, which the coronavirus will likely fall under. The law stipulates that time off for dependants can be taken specifically where a dependant has either fallen ill, is injured, or is assaulted. Other qualifying criteria include to make arrangements for the provision of care, or such arrangement has been disrupted, in the case of the death of a dependant, or where there has been an unexpected incident involving the dependant at school. Currently, there is no qualifying service period required to entitle an employee to take time off work of this nature, so employees who have just started a new role can still take this time off.

If parents are to take time off for dependants they should be aware that, aside from the fact that it is unpaid, they are required to inform their employer as soon as reasonably practicable about the absence, the reason for it and the anticipated length, which employers should not reasonably refuse. This is unless, as set out by law, it is not necessary to take the time off or where the amount of time off proposed is unreasonable — the Government advises that the length of time should not usually be more than two days. Ultimately though, employers should consider the coronavirus situation when establishing principles around a “reasonable” amount of time.

Under normal circumstances, an employer is likely to only deal with a relatively small number of instances of time off for dependants throughout the year. However, on rare occasions such as the coronavirus, the number of instances may well increase. Even when this happens, it is not within the discretion of the employer to deny the right to time off for dependants.

Employers should be aware that an employee can make a complaint to the employment tribunal that they have been unreasonably refused time off to care for dependants. This claim carries no service qualification and if the complaint is found to be justified, the tribunal will make a declaration that the refusal was unfair, and award compensation that is “just and equitable”. This is determined with consideration of any loss that the employee might have suffered and having regard to the employer's default.

Similarly, dismissing an employee because they exercised the right to take time off to care for dependants will be automatically unfair.

Alternatives

Employers may find it beneficial to communicate with employees about how an extended period of time off will be dealt with. This is in the event that an employee either does not ask for time off for dependents because they would like to be paid during their absence, or if they themselves end up having to self-isolate because they are experiencing symptoms or they have tested positive for the virus — or if their child falls under one of the two categories.

It may be that employees are permitted to:

  • work from home where possible — this will be the best option where children are asked to self-isolate more than once or they need to self-isolate and cannot leave the house

  • use their accrued annual leave for the period that they need to look after their children or self-isolate

  • allow flexibility in their start and finish times to allow them to carry out a caring schedule with others that they live with, if applicable

  • a period of furlough for eligible employees under the Coronavirus Job Retention Scheme — ending on 31 October 2020

  • authorise weekend work only where possible — this may be beneficial for employees who have partners who do not work on weekends and can stay with children during this time.

While employees are off, employers may become short-staffed (especially if there is no way for affected employees to work from home and still provide a service to the employer). In this case, employers may want to explore the following hiring options:

  • casual workers

  • fixed-term staff

  • agency staff (though this may cause employers to incur more costs)

  • redirect urgent workload internally — to qualified staff still in the office. This may be more beneficial for work that requires training before work can be completed

  • direct employment.

Takeaway

During these unprecedented times, it is always a good idea for employers to consider the best way to manage staff that will both benefit said members of staff and the wider business as a whole.