Weekly dilemma: Time off during school holidays to look after children

We’ve had a number of employees asking, in advance, to take time off during school holidays to look after their children. What are their legal rights, and what are my options?

School holidays can be a stressful time of year for both employees and employers, with parents trying frantically to arrange childcare, and employers facing additional pressure to accommodate employees’ requests for leave. There are a number of arrangements that you and your employees can make, and it is a good idea to set these out in your staff handbook.

Most obviously, all your workers are entitled to 5.6 weeks’ statutory paid annual leave, which you may have supplemented by additional contractual holiday entitlement. You can refuse a holiday request, for example if too many employees wish to take holiday at the same time, but to do so you must give notice equivalent to the period of leave requested. However, you must deal with all holiday requests fairly and consistently, and only refuse them on reasonable grounds and in good faith.

Parents with sufficient continuous service may submit a request to take parental leave, which allows them up to 13 weeks’ unpaid leave during their child’s first five years. You cannot refuse this request but, if your business would be unduly disrupted, you are entitled to delay the leave requested by up to six months.

Qualifying employees also have the statutory right to request a variation of their contract of employment in order to care for a child. To be eligible, employees must have at least 26 weeks’ service at the time of making the request, although they can only make a request every 12 months. There is a statutory procedure that you must follow in dealing with such requests, and you can only refuse them on specific grounds, such as cost or a detrimental effect on quality or performance. Breach of this procedure will entitle an employee to bring a tribunal claim.

You may decide to entertain flexible working requests from employees who are not eligible under the statutory regime, and you have complete discretion in dealing with – and refusing – such requests. However, when dealing with a flexible working request, either statutory or non-statutory, you must act fairly and in a non-discriminatory manner.

Finally, employees are also entitled to take a “reasonable” amount of unpaid time off to take action that is necessary in relation to a child or dependent. This can include time off because of an unexpected disruption to pre-arranged childcare. Recent case law has confirmed that “unexpected” in this context is not limited to occasions when the disruption to childcare is an immediate emergency or crisis; it can include instances where an employee requests time off a couple of weeks in advance of the disruption to the childcare. You should try, where possible, to allow employees time off or flexibility in working hours in order to take care of any unexpected childcare difficulties.

Kirsty Rogers, employment partner, DWF LLP.

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