January 22, 2021
With primary and secondary schools closed to the majority of pupils as of 5 January 2021, many working parents have found themselves with an impossible task. How to juggle a full day of home schooling with a full day of work, all whilst in lockdown?
Most employers have become familiar with HM Revenue & Customs’ Coronavirus Job Retention Scheme (CJRS) since its introduction in March 2020. In its most recent evolution, rolled out in response to the closure of schools, HMRC have amended their guidance on which employees can be furloughed under the CJRS. Employees can now be furloughed if they are unable to work, whether at the workplace or from home, because they have caring responsibilities resulting from COVID-19, including as a result of the school closures.
Furlough is now paid at 80 percent of the employee’s normal pay, capped at £2,500 per month. The employer is responsible for employer National Insurance and pension contributions on top of this amount.
This has provided clarity on previous CJRS guidance and offered employers another way to support working parents. Employers have the option of furloughing employees full-time if they have children at home. The CRJS still also permits part-time furlough of employees. Unlike previous versions of the CJRS, employees do not need to have been furloughed before to be eligible for furlough now.
For some, however, this does not go far enough. There is no “right” for an employee to be furloughed, or obligation on the employer to furlough employees who are struggling with childcare. A recent poll by the Trades Union Congress (TUC) of over 50,000 working parents found that 7 in 10 employee requests for furlough were turned down. They are calling for a temporary legal right for employees to access the furlough scheme where their childcare has fallen through as a result of COVID-19. The government has so far not commented on this, and with talk of school return dates now starting, it seems unlikely that this would be formalised in time.
Striking the balance
Employers are left to decide how to balance a potentially increased workload with furloughing employees who need it. For some, the nature of the role dictates whether this is practical, as physical presence at the workplace may mean that furlough is not possible.
Flexible furlough may be the answer for some employees, allowing them to share the childcare responsibilities with a partner or member of their childcare bubble. This can be used to allow employees to work certain days per week, or reduced hours throughout the week.
If an employer is unwilling or unable to grant an employee’s request to be furloughed, it should bear in mind the risk of indirect discrimination. A blanket refusal to furlough may disproportionately impact female employees who tend to provide the majority of childcare. Employers who routinely turn down furlough requests need to be clear on their justification of why furlough is not workable for their business, and make decisions consistently.
An employer choosing to furlough only employees with children, on the assumption that they have childcare problems, may also be at risk of a discrimination claim. If an employer needs to furlough employees because of the impact of COVID-19 and there are no volunteers, objective criteria should be used to choose who is furloughed.
An employer that does not have a good reason to furlough an employee who requests it, or is not open to finding a solution that works for both, may expose themselves to claims that they have breach the implied term of trust and confidence. Again, consistent, objective reasoning and selection should be used to mitigate this risk.
What other options are there?
Options that were available before the introduction of the CJRS may still be useful, instead of or in combination with furlough.
Employers may wish to consider informal applications to work flexibly on a temporary basis. It remains open to eligible employees to make a formal application to work flexibly instead, which an employer has to consider. Flexible working requests may be refused if an employer considers that it would have a detrimental impact on their business. If approved, formal flexible working applications result in a permanent change to the employee’s terms and conditions, so should be considered carefully.
Employers may wish to encourage employees to use annual leave, although this is unlikely to be palatable to employees facing the usual long school holidays later this year. Employees are still able to take unpaid time off for dependants due to an unexpected disruption in childcare arrangements, or request unpaid parental leave.
As always, whatever their decisions, employers should communicate with their employees and document their rationale.