Posted by Malcolm Gregory, Partner
Homeworking during lockdown – a look from both sides (of the kitchen table)
Following this week’s announcement of the most recent lockdown, employers and workers alike have raised important questions around the practical implications of the school closures. Our Employment & HR team explore the most pertinent issues.
Can employers furlough workers who are looking after school-aged children?
Recent changes to government guidance on furlough eligibility following the announcement of the third lockdown in England now mean that workers can be furloughed if their caring responsibilities arising from Covid-19 mean they are unable to work (including from home) or that they are now working reduced hours. Caring responsibilities can include caring for children who are at home because of school or childcare facilities closing, or looking after a vulnerable individual.
In the first instance, employers must follow the latest government guidance for furloughing workers. In short this means that employers should ensure that the relevant worker was employed and on payroll on or before 30 October 2020, and the employer cannot maintain work levels due to their operations being affected by the pandemic. This allows them to claim 80% of the employee’s usual salary for hours not worked, up to a maximum of £2,500 per month. Employers still need to pay for employer National Insurance contributions and pension costs.
What arrangements can home-schooling workers and employers come to?
Under normal circumstances, it would not be appropriate for a worker to work from home while also providing childcare. However, in the current conditions employers may need to take a more pragmatic approach. The 10.6 million key workers, who collectively make up around 33% of the UK workforce, are currently the only group for whose children schools are open. The majority of parents in the workplace will therefore face the issue of childcare. Putting a blanket ban on working from home while also looking after children is likely to result in a large proportion of the workforce not being able to carry out any duties. As a result, employers may be prepared to take a more relaxed and flexible approach to homeworking and allow employees to work around their childcare responsibilities.
Some options could include working different hours to potentially allow partners to assist with childcare, or agreeing earlier starts and/or later finishes to the working day to factor in time spent not working. Employers may also consider temporarily reducing work levels and being flexible with deadlines where possible.
Are there alternatives to furlough if working from home is not practical?
There will, of course, be situations where homemade ‘do not disturb’ signs and bribes of limitless screen time for children are not sufficient. In some cases, it is not practical for workers to effectively work from home while supervising children.
Employers should always check for any provisions in the worker’s contract that deal with dependent care leave as a starting point. If they exist, they should be followed. However, such provisions tend to be rare. Employees of any length of service are entitled to a reasonable amount of time off to care for a dependant. It is a statutory right that is unpaid. This is typically used for short periods of only a few days at most so may be unsuitable for the current lockdown, although employers may decide to determine a reasonable amount to be different in the circumstances.
Employees with more than a year’s continuous service can take up to 4 weeks’ parental leave per child in any particular year (up to a total of 18 weeks’ per child in total). There are additional notice requirements for this type of leave and similarly to dependant leave, it is also unpaid.
Can – or should – employees take holiday while on furlough?
Government guidance on holiday entitlement and pay during the pandemic cautions employers who require workers to take holidays during periods of furlough or lockdown as the fundamental purpose of the holiday is to rest, relax and enjoy annual leave. This may be incompatible with employees’ individual circumstances although employees can, of course, ask to take paid holiday if they wish.
In summary, it is advisable for employers to maintain an open dialogue with workers, in order to come to an arrangement that is beneficial for both parties. A well-drafted homeworking policy is a good starting point and can provide a measure of clarity for employers and workers alike during these uncertain times. Any permanent changes to working patterns should be confirmed in writing as a contract variation, but even temporary, short-term arrangements should be properly recorded to avoid misunderstanding or subsequent disputes.
As with most things Covid-related, the legal landscape is complex and fast-changing. Our experts Employment lawyers are on hand to provide advice on emerging issues:
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