Lockdown Childcare – Is Furlough a Solution?

January 7, 2021


Following the recent announcements that schools in all four UK nations will close once more during the current lockdown, employment lawyer Damian Phillips examines the rights and options available to working parents who may be affected by this.

As identified during the first national lockdown last year, many parents have struggled to balance their need to provide childcare or home-schooling with their own work commitments. As a result of the fresh school closures, undoubtedly many parents will be looking for a solution as how this situation can be managed. Such parents may be forced to make the decision between managing childcare and taking reduced hours or unpaid leave from work, if their employers take no action. Research carried out by the Trades Union Congress found that during the first national lockdown, 1 in 6 working mothers reduced their working hours due to school and nursery closures, with single parents more likely to be affected. This has also led to concerns that the UK’s gender pay gap will be widened due to the disproportionate number of women taking cuts in hours and pay in order to cover childcare.

According to the rules of the Coronavirus Job Retention Scheme (CJRS), employers can furlough parents who may be unable to work due to lack of childcare. This will often be a sensible and pragmatic solution, particularly if the reality of the situation is that an employee’s productivity will be adversely affected through no fault of their own. Furthermore, it generally should not place too great a financial burden on businesses. However, there is no obligation on an employer to agree to furloughing an employee and it may have genuine business reasons to refuse a request. There is an argument that simply refusing to consider an employee’s reasonable request to be furloughed could amount to sex discrimination and/or a breach of the implied term of mutual trust and confidence.

If employees are unable to be furloughed from their employment, there are some alternative options:

  • Employees can ask their employer for flexible working, in order to reduce or change their hours. There is a statutory right to request flexible working but employers may refuse requests in certain circumstances and this right does not apply to gig economy workers;

  • Employees who have been with their employer for over a year may claim statutory parental leave of up to 18 weeks per child (in total, up to their 18th birthday), but the timing of this will need to be discussed with the employer and this leave would be unpaid. It is also limited to 4 weeks’ leave per year unless the employer agrees to waive this rule;

  • Everyone has the right to request emergency time off, including to care for a child or other dependant. However, this is only for short periods of time and is also unpaid; and

  • Both employees and workers can use their annual leave (which should be fully paid), but this may be subject to the amount of notice required by their employer and employers also have the right to reject holiday requests if they affect staffing levels.

Hopefully one of these options will be viable for both parties.



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