Covid-19: Pay for working parents forced to look after their children

Rachel Crasnow QC

Employers are making difficult choices at this time in situations which have never affected their workplaces before. Employment lawyers are having to advise in a context where the landscape is changing day by day. As fresh guidance is issued and new headlines emerge, the next legal queries evolve. This blog by Rachel Crasnow QC is the second in a series to examine how the interaction of the workplace and the corona virus creates novel problems for employment lawyers. 

Working parents

What is an employer todo where a working parent, for whom there remains home-based work, is not ableto work because of school closures and their childcare responsibilities?

If a parent cannot workat evenings or weekends because, for example, their partner is a key worker ata hospital on shifts, it could be thought the natural recourse is for them toapply to take annual leave, since that is the key form of non-sickness related paidleave.  

Other forms of leaveare at first glance less advantageous: time off to look after a dependent isunpaid leave unless the contract says otherwise. The circumstances for this rightto arise are likely to be satisfied, in particular the existence of an unexpectedtermination of arrangements for the care of the dependent. The employer ofcourse has a discretion to continue with wages in such a scenario, but theeconomic downturn makes this unlikely for many workplaces.  Contracts with family leave provisions arealmost always unpaid.

But taking unpaid leavenow leaves untouched annual leave for when “non-staycation” holidays become apossibility again. (This is particularly relevant given the guidance fromGovernment on 27 March that workers who have not taken all of their statutoryannual leave entitlement due to COVID-19 will now be able to carry it over intothe next 2 leave years.) Individuals in this situation might ask why shouldthey be required to use up their precious annual leave when they will need aholiday later in the year just as much as their colleagues without childcareresponsibilities,  given their inabilityto work is involuntary? Many employers would be sympathetic to these responsesin the early days and even continue pay at 100%, but such generosity might wellbe time limited.

Indirect discrimination?

Female employees mightargue that it is indirectly discriminatory to require parents to take annualleave in such circumstances since more women than men carry the primary burdenof childcare and other domestic responsibilities, But at a time when bothparents are working from home, demonstrating disparate impact could wellrequire specific evidence rather than merely asking a court to take judicialknowledge of this social fact, Even where, as at the Bar, there is a risk thatthe removal ofchildcare support will impact far more on women barristers than men ( see the 57%/ 4% primary carer statistic in my colleague Rachel Barrett’s recent blog on diversity issues during a pandemic), at the currenttime many fathers are by necessity taking on far more hours of childcare thanusual. So careful thought needs to be put into an indirect discriminationclaim, and that is before focusing upon questions of justification.  

Whether an employer be justified ininsisting that annual leave was taken requires a focus upon the arguments onboth sides. On one hand, the employer could say he was being generous by notinsisting on the female employee being forced to take unpaid leave fordependents. On the other, the offer of annual leave might suggest funds existto  suspend on full pay, which ought tohave been offered in the first place. Much will depend on the options open tothe particular employer at this extraordinary time. Debates about the legitimacy ofreliance on costs often arise in justification arguments (note in Kapenova vDepartment of Health [2014] ICR 884 the EAT confirmed that a public sectorbody can rely on costs, among other considerations, to justify indirectdiscrimination). How effective it will be for an individual to threatenindirect discrimination will be workplace dependent. A potential complainantwill need to look to the make-up of the workforce as well as her own appetitefor the risk of drawn-out litigation. Careful legal advicewill be required.

Note that it willlikely not amount to a breach of contract for an employer to instruct workerswho are not on sick leave to take statutory annual leave if due notice is given(although the wording of contracts should be carefully checked).

Are other solutionsavailable to the parent?

Parent employeedesignated as a ‘furloughed worker’?

If the specificworkplace has some downturn in work, could the employer – with the consent ofthe workers - shift work to other employees and declare that the parentemployee is designated as a 'furloughed worker' under the Coronavirus JobRetention Scheme (the Scheme)? This would enable the parent to look after theirchildren (they would be unable to carry out any work under this new regime) whilstreceiving 80% of their wages capped at £2500 per month. The guidance to dateleaves it to employer discretion to determine if there is in fact no work for aparticular employee because of COVID-19. Whilst there is nothing currently requiring the employer to pay thebalancing 20% of wages, it is notable that the current Government guidancestates that changing the status of employees remains subject to existingemployment law.  It could be argued thatthis proviso means that  consent to payless than 100% of pay  is required. Ifthis is right, and there is an absence of consent, employers may well considerunilaterally varying the contractor simply dismissing and then re-engaging onterms which precluded the employer being required to “top up” pay.   Ifconsent is withheld because the employee believes top-ups to 100% of wages arebeing allocated on a discriminatory basis, the dismissal could amount to aconstructive unfair (and possibly discriminatory) dismissal.

Furlough decisionscould be fraught with complications depending on the basis as to who enters thescheme; if an employer is selecting who is going to be furloughed and choosesall the women with childcare responsibilities, the male part of the workforce mightcomplain under the Equality Act.

If a furloughed parentdecides they do have some capacity to carry out work, their employer can exitthem from the furlough scheme, according to the updated guidance of 26 March, butonly after a minimum of 3 weeks.

It is possible to gofrom unpaid leave directly to furlough but only where the unpaid leavecommenced after 28 February. Since schools closed after that date, this bar isunlikely to affect people in the scenario described above.

If the parent wishingto take time off for childcare purposes is a key worker, is an employer able tofurlough them? The concept of key worker is not one which relates to theindividual work undertaken. It would theoretically be possible for a teacher tobe furloughed (where she was not required to teach vulnerable children orchildren of other key workers) but then taken off the scheme by her employer asand when the need arose, perhaps when other teachers became sick.

Conclusion

Many of the difficultchoices which employers are having to make at the moment might havediscriminatory consequences.   Asimportant as the avoidance of a tidal wave of new litigation in future monthsis the need to keep to a minimum feelings of unfairness within the workplace.Transparent policies and some type of consultation go a long way to keeping thepeace in these challenging months.  As theGovernment’s guidance is updated, advice will be kept under ongoing review.

Cloisters barristersare available to discuss the many issues arising in the current COVID-19crisis, including our investigators and specialist mediation team. Pleasecontact us through our clerks in the usual way.