Can workers remain furloughed if they don’t have childcare in place?
Image: Unsplash/Clem Onojeghuo
As sites start to re-open, some furloughed construction workers are concerned that they may be called back to work without anyone to care for their children while schools and nurseries remain closed. Linky Trott explores employees’ options.
I have three children off school (including one at nursery, which is shut), my wife works for the NHS six days a week. I am employed by a building company but I am currently on furlough. If the company decides to start work again and the nursery hasn’t opened, can I remain on furlough to stay at home and look after my children?
The short answer to this question is yes. The government guidance to employers on the Coronavirus Job Retention Scheme (referred to as furlough) is clear:
“Employees who are unable to work because they have caring responsibilities resulting from Coronavirus (covid-19) can be furloughed. For example, employees that need to look after children can be furloughed”.
However, furlough is not an employee right. It is up to the employer whether or not it is offered and when it may be terminated. This is the case unless an agreement to the contrary was reached in the original furlough agreement when you were placed on furlough.
If therefore you are recalled to work by your employer, who is unsympathetic to your childcare issues and simply instructs you to report to work, the guidance issued falls rather short.
For example, one FAQ in the guidance cites the question: “I can’t go to work because I need to look after my child but my boss is threatening to sack me if I don’t”. The guidance simply states that it “urges employers to take socially responsible decisions and to listen to the concerns of the workforce”. That is unlikely to persuade an employer who is aware of the problem but is threatening to sack someone.
So in those circumstances, what are the options?
School and nursery provision
The first line of enquiry should be school and nursery provision for the children given that your wife is a ‘key worker’.
If schools/the nursery closed whilst you were on furlough, it may be that you have not made enquiries as to the school’s provision for your children. As they are children of a key worker; it would be prudent to make those enquiries now. In some locations, schools have combined resources and opened one location to cover several schools in the area, providing the cover required for the children of key workers.
In practice, however, we have heard of schools or nurseries being unable to open, even for the children of key workers, because of their own staff shortages. If that is the case here, and if the school/nursery cannot direct you to local provision elsewhere, this is not going to be the solution required.
Subject to that, what remedy you have depends on the action taken by your employer, if you say that you are unable to return to work because you have childcare responsibilities.
If your employer does not sack you but takes you off furlough and does not pay you, the question that arises is whether or not you would have a claim for unlawful deduction of wages.
This remedy is generally not available to employees who are unable to work (the principle being that “wages” is payment due for work done). Therefore this does not seem to be a claim available to you. Nor would you be entitled to Statutory Sick Pay as you would not qualify under the statutory scheme.
If you are subjected to a disciplinary process as a result of ‘refusing’ to come into work, given the circumstances, the imposition of any disciplinary sanction would be unreasonable. This would be particularly pertinent if you have actively engaged with your employer to find a solution as detailed below.
If, however you are sacked and you have over two years’ service, it seems likely that an employment tribunal would determine that this was not a ‘fair’ reason for your termination and determine that you were unfairly dismissed. This would particularly be the case where you have actively engaged with your employer to identify alternatives which they unreasonably reject, for example:
- Offer to drop salary whilst on furlough to the maximum furlough amount if your employer was previously ‘topping up’;
- Ask to cover some of the period by taking some holiday to cover the gap. While this is far from ideal, it may be a suitable route through to demonstrate compromise and a willingness to reach an accommodation. Given that furlough is only (currently) due to last until the end of June, holiday is unlikely to fill all of the gap but may show willing;
- Ask to take a period of parental leave. If you have been with your employer for at least a year, parents are entitled to take up to four weeks a year (you can agree more with your employer) of unpaid parental leave for each child under the age of 18 (subject to a maximum of 18 weeks for each child). There is a requirement to give 21 days’ notice which is likely to be difficult to comply with in these circumstances. It is also unpaid which will make this the least attractive of all options.
It seems sensible to explore these options with your employer; if you do not explore parental leave, it would be prudent to explain why this would not be a viable option for you, e.g. unpaid and outgoings to meet. You should remind your employer that it is perfectly possible for you to remain on furlough leave if your difficulties with childcare arises from the coronavirus.
For those with under two years’ service, the alternatives should be explored nonetheless. Depending upon the profile of the employer, they may be sensitive to adverse publicity in the current circumstances and given the link with a key worker.
Linky Trott is partner and head of employment at Edwin Coe.