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Employers and employees face huge challenges to find solutions as schools reopen

Tuesday 26 May 2020

The Government continues to press ahead with its plans for schools to reopen on 1 June for some age groups.

While it has been acknowledged that opening on that date may not be possible (or acceptable) for many schools, teachers’ unions and local authorities, the message remains clear that government is looking for schools to start to open more widely as soon as they are able to do so. The availability of schools to support working parents is key to the process of trying to reboot the economy as the country takes tentative steps to emerge from lockdown.

However, as working parents receive communications from their children’s schools explaining what an adjusted school experience might look like, it is clear that the fact that schools are starting to reopen will not remove the pressures that many have faced in the past 10 weeks in having to juggle the roles of employee and carer / temporary teacher.

School are taking steps which would have considered unthinkable 3 months ago, to try and ensure the safety of their classrooms. Limited age groups will return in what are likely to be shorter school days. Classes of 10 – 15 pupils will be expected to practice social distancing and a strict handwashing regime. Start and end times will be staggered, with parents not being able to cross the school threshold. Breakfast clubs and after-school support will not be available in the same way. Incidents of suspected COVID-19 related illness will be met with strict protocols and possible closures.

This will be a limited, sporadic and uncertain return aimed at allowing some children to be reintegrated into learning before the summer holidays. Families with children across different age groups may have some children spending time at school and others at home for months to come.

Reports also indicate that many parents have genuinely held concerns about the prospects of their children returning now, to a school environment which will expose their children to levels of contact and interaction which they have not had since lockdown, particularly when the school experience itself will be so unfamiliar and when the track and tracing which is intended to accompany reopening is yet to be rolled out.

This is unlikely to be a short-term issue. Businesses are planning on the basis that unless a vaccine becomes quickly available, then social distancing restrictions will remain in place for the rest of 2020 and beyond and why should schools be different? September will be the first time that many children will have been in a classroom for 6 months. It is reasonable to assume that their return is likely to be a graduated one, with students being asked to alternate between school and home based online learning. 

With all this in mind, employers are having to recognise that despite the gradual reopening of schools, parents with childcare responsibilities will not be able to provide the 09:00 – 17:00 availability that they used to do, prior to the pandemic.

While many businesses and organisations and their employees have shown themselves to be extremely adaptable over the past 10 weeks, this will be very challenging. If an employer is looking for its employees to start returning to the office, and factory or depot staff members say they simply cannot do so because they are looking after children who would have otherwise been at school, then what should they be taking into account?

  • Flexibility will be key. Guidance remains that where employees are able to work from home, then they should continue to do so. During lockdown, many employers have found new and innovative ways of working remotely with staff working extremely hard to maintain business continuity and client service as a ‘virtual workforce’. These arrangements have generally been temporary and informal. If they are working, then employers whose businesses can largely operate via home working may take the view that the easiest option is to allow these arrangements to continue.
  • The landscape for requesting changes to work patterns has changed. Another reason why a temporary and informal approach may prevail is that employees who face having to ‘return to working’ arrangements which are incompatible with their childcare commitments (provided they have 26 weeks of continuous employment) may be able to make a request for flexible working under the statutory scheme for any reason. Considering requests on this basis requires the employer to engage much more clearly with a defined process, following the applicable timeline and considering the particular statutory reasons it can give for refusing a formal request. If the employee making the request has been able to successfully manage their work from home during lockdown so far, then this will inevitably impact on whether an employer can effectively argue when rejecting a request to work from home more in future, that there is a legitimate business need for the employee to be in the office. Employers should also be alive to the fact that a blanket policy of requiring a return to the workplace without considering individual circumstances could give rise to allegations of discrimination, not least given that female colleagues are statistically more likely to have childcare responsibilities.
  • Furlough will remain a default for many. Government guidance on the Coronavirus Job Retention Scheme makes it clear that employees who are unable to work because they have caring responsibilities resulting from COVID-19 can be furloughed. This is the case even if their job is still operational and their employer would like them to return to work. The scheme will remain in place in its current form until 31 July and will continue beyond that date until October, though employers will start to be asked to share some of the financial burden. If an employee cannot return to the workplace and cannot work from home, then furlough allows the situation to be put ‘on hold’ potentially into the new school year. This assumes that the employer is able to secure short-term cover for the employee during their furlough. Also, some employers are concerned about the challenges (and potential resentments) which arise from trying to manage furloughed and non-furloughed groups of colleagues’ long-term.
  • Focus on the reality of the childcare situation rather than whether or not the parent wants their child to return. It has been questioned whether it might be considered an ‘abuse’ of the furlough scheme for an employee to be placed on furlough in circumstances they are electing not to send their child back to school. However, given the uncertain nature of the amount of school provision, most parents with caring responsibilities will be able to argue that even if they did send their child back, the amount of childcare still required will prevent a normal return to work. In any event, arguing with a parent about the decisions which they are having to make about their children’s welfare is likely to make the process adversarial and generate resentment.
  • Other options could be engaged - by the employee or by agreement. Be alive to the fact that other options might be available where the employee is unable to return to work because of a lack of childcare. Using statutory / contractual holidays might buy some grace, unpaid leave or a sabbatical might be agreed, and employees with over one year’s continuous service may apply for a period of unpaid parental leave if they are caring for a child under 18 (a maximum of four weeks’ parental leave per child). Employees have a right to a reasonable amount of unpaid time off where it is necessary to deal with unexpected events involving their dependants which might also be engaged if they were unable to return because of a lack of available childcare (this is normally intended to cover a couple of days only but clearly sourcing cover in current circumstances comes with particular challenges). A variety of options could potentially be engaged. However, these may be more likely to come into play after 31 July, if flexible working is not an option and if the employer is unwilling to make furlough available given then financial costs which are likely to be associated with the scheme from August.
  • Disciplinary proceedings are the last resort – for now. If the work can’t be done effectively at home, but the employee refuses to return, then the employer could consider issuing an instruction that the employee comes back to work. If the employee refuses to do so, then disciplinary action might follow. In the current circumstances, Tribunals are likely to be sympathetic to employees who are genuinely struggling to find childcare cover. As things stand, keeping the employee on furlough or putting them onto a form of unpaid leave will be the approach adopted by many. However, as the furlough scheme is wound down then employers may become more assertive. Part funding furlough may not be a cost that many businesses and organisations can bear. In those circumstances, it may be appropriate to consider termination of employment as a last resort, though this may not be without risk. As the situation develops and more employees return to work, it may also become ‘safer’ for employers to consider disciplinary action.

In summary, while some schools starting to re-open may be regarded as a positive step for employers wanting to try and get back to pre-lockdown ways of working, the reality is that this is unlikely to represent a dramatic step change. Instead, already stretched employers and employees could be faced with more obstacles to overcome.

The cultural shift that many employers have been forced to embrace as a result of the lockdown has been welcomed by many working parents – employers may now need to consider whether this has set the expectations of their workforce in the medium to long term and consider whether these expectations fit with their own.

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