With the long summer holidays fast approaching, busy parents across the country will already be turning their thoughts to what childcare arrangements they have in place during July and August. We know how disruptive the school break can be to your business and hope this guide will assist you in dealing with potential HR issues arising from employees who have parental responsibilities.
Remember the right to take time off for dependants
The right to take time off for dependants was introduced in 1999 and allows employees to take a reasonable amount of unpaid time off work in order to deal with unexpected emergencies affecting their children. In fact, the definition of “dependant” extends to an employee’s spouse/civil partner, parents, and even someone else living in his or her household.
In the context of parental responsibilities during school holidays, the right could legitimately be exercised where the employee is required to provide assistance for their child who has fallen ill or been injured. A parent may also take time off in the event of an unexpected disruption, termination or breakdown in their normal childcare arrangements.
The legislation does not give guidance on the amount of time off that would be deemed “reasonable”. It is therefore likely that what is considered “reasonable” will be determined by individual circumstances. Employers must bear in mind that their business’ operational needs are not relevant in granting such time off.
In the case of Cortest Limited v O’Toole (2007) it was considered that leave for a period of one month would not be reasonable. This decision was in spite of the fact that the employee’s partner had unexpectedly left the family home, the employee was unable to pay for childcare and his nearest adult relative worked full-time. It appears therefore that when the right is linked to unexpected events disrupting care arrangements, the right is limited to time off to make arrangements for the provision of care for the child (or other “dependant”) and as such does not extend to enabling the employee to take ongoing time-off to provide the care themselves.
In order to obtain the right to time off, employees must tell their employer, as soon as practicable, the reason for their absence and how long they expect to be away from work. There is no need for the notification to be provided in writing but the employee needs to give their employer enough information so that the employer is aware that the right has been exercised.
If an employer unreasonably refuses to allow the employee to take time off, or subjects that employee to a detriment for taking or seeking to take time off, the employee may make a claim for compensation in the employment tribunal. If that was not serious enough, employers must be aware that if they dismiss an employee because they sought to take or took time off under these provisions, that dismissal will be automatically unfair.
Handling requests to temporarily change working hours and/or work from home
The right to request to work flexibly is enshrined in law and applies to employees who have 26 weeks continuous service and have a child under 17 (or 18 if the child is disabled), or care for an adult. To be eligible, the employee must have or be expected to have responsibility for the child’s upbringing.
Essentially, the law allows a qualifying employee to request alterations to his or her terms and conditions of employment in respect of working hours or where they are required to work. As such, requests for job-sharing, home-working, flexi-time and term-time working may be the subject of applications which businesses must be prepared to deal with.
A statutory procedure is in place which sets out how a request can be made by an employee and the process which must be followed by the employer in making the decision on whether or not to make the requested change. There are only limited reasons for which the employer may reject the employee’s application.
Any failure to properly abide by the set process, or a refusal of the request for a non-prescribed reason, will leave the employer exposed to the risk of the employee making a claim in the employment tribunal. The tribunal may order the employer to reconsider the application and has the authority to award compensation not exceeding 8 weeks’ pay (such pay capped at the current statutory rate of £400 per week). Importantly, the tribunal has no power to order an employer to actually accept the employee’s flexible working request. Note though that dismissing an employee for making, or seeking to make, a request to work flexibly will be automatically unfair.
Dealing with unauthorised absences
Businesses often report increased levels of employees falling ill during school holidays. Whilst the vast majority of such sickness absences will no doubt be genuine, it is understandable that employers may become suspicious, particularly if a pattern develops in the days that are being taken off.
Unauthorised absences cause unwanted disruption and place an unfair increased burden on those employees who do turn up to work. Concerned employers may wish to routinely conduct return to work interviews as a means of monitoring and discouraging non-genuine sick leave. We would recommend caution when conducting such interviews; take care to ensure at the outset that it is clear that the absence is not considered a disciplinary issue. However, if it later transpires that an employee’s sickness was not authentic, employers needs to be sure to take appropriate disciplinary action.
The array of family friendly legislation continues to expand and those with HR responsibilities need to ensure that they keep up-to-date with the ever-growing list of rights and entitlements that parents possess. Disruption through absences during the summer months is something that all employers have grown accustomed to, but a solid knowledge of the law and stringent policies will help ensure that your organisation can continue to be sympathetic to the needs of your staff without compromising on business success.