School's out for summer - but where does that leave employers?

Can employers insist that staff arrange childcare when they are working from home?

Employees must generally be available to work during working hours and not be distracted by matters such as childcare. So if they can’t properly carry out their duties if looking after children, the short answer is ‘yes’, employers can insist that staff working from home arrange childcare.

In practice it may depend on several factors, including the nature of the business, the employee’s role and the age of the children. Whilst older children can be self-sufficient, younger children normally can’t ‘fend for themselves’ whilst their parents work.

If employees can work alternative hours, for example in the evenings when children are in bed, then you could agree a slight change in working arrangements to accommodate childcare needs, if practicable.

Usually, if children impact a person’s ability to carry out their role, childcare should be arranged. The difficulty arises where there’s a difference in opinion concerning the impact that childcare responsibilities involve.

* Can I ask staff what arrangements they have in place? Yes, if it’s done in an appropriate way and you ask all staff and don’t direct the question only to females, or certain sections of the workforce. The risk in asking specific individuals is that you could end up on the wrong side of a discrimination claim and damage employee relations, so these conversations need to be carefully managed.

* What if an employee arranges childcare but the hours differ from normal arrangements? Often summer clubs have shorter operating hours than schools and might be in less convenient locations. So parents might ask for alternative working arrangements in holidays. It’s best to find an agreement that works for all parties, which fosters trust and loyalty. However, it’s not always possible and sometimes it’s better for employees to use family friendly leave options.

* What if my employee says they can’t arrange childcare and must be available to look after their children? There are various types of leave employees may be entitled to to manage childcare. Parental leave is available to all parents with at least one year’s service with a child under 18. It is unpaid but allows for an extended period of leave to be taken to care for children. For a disabled child the four-week limit per year does not apply.

If there’s an unexpected interruption in normal childcare arrangements, or if the child has an accident or is unwell, the employee may be entitled to time off. Again, it’s unpaid and intended to be short-term leave rather than for several weeks to cover school holidays. It’s worth remembering that it is open to the parties to agree temporary changes to working hours - along with a corresponding change in pay - if that’s the most appropriate outcome. And employers need to be mindful of the potential for indirect discrimination claims, particularly if an employee feels they have no alternative but to resign in light of childcare issues.

* What can I do if an employee says they have childcare, but I don’t believe them? The main issue is likely to be evidence. If they normally work from home, it may be difficult to demonstrate that any temporary reduction in efficiency is related to childcare. But where there are concerns, discuss these with the employee, remind them of the requirement to have arrangements in place and discuss alternative options. Ultimately, if an employee is not working when they should be, it may be a disciplinary issue.

* When can I take disciplinary action? If it’s been made clear that staff must have appropriate arrangements in place and an employee fails to comply without good reason, it may be possible to take formal action, depending on the circumstances. If an employee has childcare that falls through at the last minute, it’s unlikely to be cause for action, but if they simply ignored the instructions it could be another matter. If an employee tells you they have childcare in place when they don’t, it may be possible to argue that dishonesty alone is cause for disciplinary action. But if an employee was dishonest due to severe anxiety, for example, action such as counselling might be more appropriate. If an employee has lied to avoid childcare costs and deliberately misled you, that is another matter.

There will never be a ‘one size fits all’ approach. Communicate with staff early and remind them of the requirements to have appropriate childcare in place.

Given the difficulties that can arise - particularly in this ‘new normal’ - we recommend taking advice if you’re unsure.

Employment lawyer Gemma Sherbourne

* Gemma Sherbourne is an employment lawyer and senior associate at LCF Law, which operates regionally, nationally and internationally, with partners in Bradford, Ilkley, Leeds and Harrogate.