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Childcare during teacher strikes: How should employers support absent parents?

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Recent news has confirmed that teachers in England and Wales are set to strike for a total of seven days during February and March 2023, impacting over 23,400 primary and secondary schools. With the first national strike due to take place on February 1, 2023, our employment law team looks at how employers can support employees affected by the strike.

What does this mean for working parents and their employers?

There is no doubt that the industrial action has the potential to cause disruption to working parents as well as to their employers. However, disruption to usual school and childcare routines does not necessarily mean a parent cannot work.

As demonstrated throughout the COVID-19 pandemic, a significant number of employees were able to work from home. Employers may consider this a potentially viable option to offer affected employees during the upcoming strikes, taking into account the ages of the children and the type of work the employees undertake.

What else can employers do to support parents?

Employers could consider whether they are able to offer increased flexibility to employees during the period of industrial action. This could involve allowing employees to alter their start and finish times, make the time up on other days, or swap their shift with a colleague.

Employers will need to ensure that employees still have adequate breaks, both during their working day and between their shifts, in accordance with the Working Time Regulations.

The option of using holiday entitlement

An employer could also allow the employee to take the dates of industrial action as annual leave, where the employee has sufficient annual leave to cover the time they need to take off.

However, employers whose holiday year has only just started should consider whether permitting employees to take up to seven days’ annual leave now could cause difficulties later in the holiday year.

Taking time off for dependants

Alternatively, employers could consider recording an employee’s absence as dependant care leave, a statutory right available to all employees irrespective of their length of service.

Dependant care leave allows for reasonable unpaid time off work where there has been an unexpected disruption, termination or breakdown of arrangements for the care of a dependant.

However, employers should be aware that such leave usually only covers emergency situations which are ‘unexpected’, so there is a question mark around whether an employee’s statutory right to take it would arise in relation to scheduled school strikes.

In the case of Royal Bank of Scotland plc v Harrison, the Employment Appeal Tribunal was asked to consider whether or not an employee, who was given two weeks’ notice by her childminder, could rely on this statutory right on the day her that childminder was unavailable.

The EAT held that ‘unexpected’ does involve a time element, so long as the event is unexpected at the moment the employee learns about it. Therefore, once employees became aware that their ability to work would be impacted by the strikes, they should have tried to make alternative arrangements to provide cover however, if it is genuinely not possible for them to do so, it is likely that they will have a statutory right to take time off.

Offering time off in lieu (TOIL)

TOIL refers to time off given to an employee to compensate them for any overtime they have already worked but which they have not been paid for working.

If employers allow employees to accrue TOIL, they could require employees to utilise this to take time off work during the industrial action.

We would recommend that employers who offer time off in lieu have an adequate TOIL policy in place setting out the rules and procedures surrounding the exact circumstances in which TOIL is accrued, who approves the TOIL and when TOIL must be taken by.

Employers should also be careful not to breach the applicable National Minimum Wage rates in respect of employees who work overtime without payment, regardless of whether TOIL is granted.

Agreeing to unpaid leave

A final option would be to permit the employee to take the day as unpaid leave, at the employer’s discretion.

In the event of an unauthorised absence

In anticipation of the upcoming strikes employers may find themselves grappling with employees failing to attend work during the strikes, and with no agreed arrangement to do so. Employers must then consider whether they want to take disciplinary action in relation to any unauthorised absences.

This will be a potentially tricky area to navigate given that many employees will assume they have a statutory right to take dependant care leave. It is highly recommended that an employer seeks legal advice before taking any further action in this scenario.

To discuss which option is most suitable to support your employees affected by the teacher strikes, speak to our specialist employment lawyers who can assist and provide you with tailored, practical advice and solutions. Contact the Harrison Drury’s employment law team on 01772 258 321 or email: employment@harrison-drury.com.


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