Coping with the cold snap: a legal guide for HR

Childcare issues


The past few days have seen large numbers of school closures, resulting in employee calls to say they cannot come to work due to childcare issues. What rights does an employee have in such circumstances?


Time off for dependants


Employees have the right to take a reasonable amount of time off work to deal with the unexpected disruption or termination of care arrangements involving dependants. Whether that time is paid or unpaid will depend on the employer’s policy and practice.


If an employee finds out that their child’s school is going to be closed due to the weather, an employee may be entitled to invoke this right. In this scenario, employers should enquire about efforts made to find alternative childcare. Employers should also ascertain when the employee found out about the school closure as the greater time that passes between this date and the closure itself, the more opportunity the employee will have had to find alternative childcare. These factors are relevant in considering whether it is necessary for the employee to take the time off and therefore whether they are entitled to it. As frustrating as it may seem, disruption or inconvenience to the employer cannot be taken into account in refusing or granting time off.


Parental leave


Those with parental responsibilities for a child under the age of five (or a disabled child under the age of 18), also have a separate right to take up to 13 weeks’ unpaid parental leave for caring for that child. Leave must be taken in blocks of at least one week. Twenty-one days’ notice must be given to invoke the right, and the proposed start and end dates must be set out.


While the lengthy notice period means parents can’t use parental leave for emergency situations, employers may see an increase in parental leave requests now, to ensure they have childcare cover for later in January. Employers might prefer to dispense with the lengthy notice period and grant the unpaid leave.


Employers will want to have policies in place which clearly outline the circumstances in which employees are entitled to time off for dependants or parental leave. Clear policies avoid confusion for those relying on or applying the policies, and also prevent employees calling in sick when the real reason for their absence is a childcare issue.


Unnecessary absences


Employers may face a situation whereby one employee makes it in to work through the snow but another from the same part of town doesn’t. Certainly, questions should be asked to identify any differing circumstances which might justify the presence of one and the absence of another, but bear in mind that the obligation to turn up at work is expressed in most contracts of employment (and is certainly implied), and breaching it has to be very well justified.


Flexibility


To encourage employees to make the arduous journey to work, employers could be flexible about start and finish times, enabling them to avoid battling the traffic as well as the weather.


Homeworking


If employees aren’t able to make the journey, enabling them to work from home is also an option.


Some employers have IT systems in place which facilitate homeworking. For those that don’t, the swine flu scare coupled with the current cold spell may prompt many to consider putting such provisions in place in the event of a future emergency.


Annual leave/unpaid leave


While employers may be within their legal rights to require employees to take annual leave or unpaid leave in circumstances where they cannot attend work, they should think carefully before implementing such measures due to the potential negative impact on morale and PR.


What is apparent is that the clearer employers are with employees regarding their options in bad weather, the lesser the impact the snow will have on the workplace.

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