The decision to close Scotland's schools has been taken as the nation responds to COVID-19. For many employers and employees, having children at home will become a challenge, to mix caring responsibilities and possibly also work responsibilities. Many employees have been working from home; many have not been able to.
There are certain key legal points to have regard to, and build on, in making decisions and setting policy.
10 key legal issues
- The fundamental issue is that by statute, employees can take "reasonable" unpaid time off without the consent of their employer, to respond to an emergency with dependants. This would be classed as an emergency and children / childcare is a dependant issue.
- Employers will be faced with a difficult question of what will be reasonable, as an amount of time off.
- You are entitled to ask about an employee's care situation and family situation, to assess to what extent employees are able to legitimately take time off in this way.
- Employees can be reminded that they need to do all they reasonably can to make alternative arrangements for childcare, to return to work.
- Employers should check and follow any contractual obligation to make payment for dependant leave. If there are issues with "policies" and concern about the ability to apply a policy, advice should be taken.
- Consider what can be done to allow flexibility, with the employee working from home and covering key tasks when it is possible and safe to do so.
- Your approach may depend on the age and needs of the child; a rigid policy feels appropriate but might need some careful consideration and some adjustment.
- You need to be careful in how you deal with obliging employees to work at home and juggle childcare commitments; it may not be appropriate but oblige employees to work from home but equally if they have childcare commitments, then you need to consider whether they should be regarded as doing something other than working from home.
- Consider what you can do to oblige employees to take paid leave from time to time. This may seem unpopular at first sight but it is possible if carried out correctly; if this lasts for months, employers will be impacted if annual leave is stored up and then to be used in the second half of the year …
- Health and government guidance requesting social distancing and avoiding family / friends is guidance and does not override the statutory position outlined above.
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