A winter of discontent is upon us with transport, teaching and healthcare staff all supporting strike action across the country and staging walkouts in the lead up to Christmas.
As part of this wave of industrial action, the Scottish Secondary Teachers Association (SSTA) and The Teachers’ Union (NASUWT) will strike over pay for one day in each of Scotland’s council areas this week.
While some councils are closing secondary schools to their junior students only, councils in East Ayrshire, East Dunbartonshire, Fife, Midlothian and the Scottish Borders plan to close their secondary schools to all pupils, meaning a significant number of working families across Scotland will need to make alternative childcare arrangements.
What does this mean for working families and employers?
Following the migration to home working which took place during the pandemic, we expect that many employers will be better prepared to deal with situations like this however, even if an employee is able to work from home, there is a question of how much ‘work’ they are able to do whilst also caring for their child.
The strikes this week only affect secondary schools so the issue of direct supervision isn’t as pressing however, given that primary schools also took strike action in November, it is a timely reminder to all employers that they should have adequate policies and procedures in place to manage unexpected absences.
What rights do employees have to time off?
There is a statutory right, under section 57A(1)(d) of Employment Rights Act 1996, which gives parents the right to unpaid time off to deal with ‘unexpected disruption, termination or breakdown’ of child care arrangements however, there is a question about whether or not the planned school strikes would entitle employees to this time off.
In the case of Royal Bank of Scotland plc v Harrison UKEAT/0093/08, the EAT was asked to consider whether or not an employee who was given two weeks’ notice by her childminder could rely on this statutory right on the day her that childminder was unavailable.
The EAT held that ‘unexpected’’ does not mean the right is only available to employees in situations which arise suddenly or in an emergency, so long as the event is unexpected at the moment the employee learns about it.
Of course, each case will be considered on its merits and there is an expectation on employees to try and make alternative arrangements when they become aware of any unexpected disruption. Nevertheless employers should be proactive and seek to strike the right balance between ensuring the work gets done and recognising that childcare difficulties arise in these situations.
What about staff who cannot work from home?
Given that there was prior warning of these strikes, employers should have initiated the conversation with staff as soon as possible to identify and manage any resource shortages.
If you have a policy on unexpected absences, it should outline what your position is on pay if an employee genuinely cannot come to work due to childcare commitments. Before you decide to withhold pay because of this type of absence, it may also be helpful to consider whether or not the employee can use any of their annual leave allowance to make up for the loss of earnings.
It is always useful to bear in mind that employers need to ensure their employees are aware of absence reporting procedures, including who they should report to if they are struggling to attend work due to childcare commitments.
Overall, we would suggest that employers try to be as flexible as possible so that their staff can appropriately balance their childcare and working commitments.
Chris Phillips is a Partner in our specialist Employment Law team. If you have queries about employment law matters please contact Chris or any member of the Employment team on 03330 430350.
