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Handling staff absence due to school closures

The Government announced has that, after Friday 20 March, all schools in the UK will be closed as part of the nationwide efforts to combat the spread of coronavirus.

This will have a huge impact on the nation’s workforce as many workers will need to make arrangements for childcare and, in the absence of suitable alternative arrangements, may have to stay at home to care for their children. The unintended knock on effect of this is that it is likely to create staffing issues and logistical difficulties for employers.

This is an unprecedented situation and when considering how to manage the situation, we recommend employers bear the key points below in mind.

Key advice for employers during school closures:
• Allow employees to work from home wherever possible – this is already being advised by the Government for all employees who can work from home, in order to curb the spread of the virus. However, facilitating home working will be especially important for individuals who do not have alternative childcare arrangements whilst their children are not at school.

• Check your employees’ contracts and your workplace policies to understand your obligations in relation to allowing time off and the right to pay:

o Employers are only obliged to let employees have paid time off to care for their children during school closures where there is a contractual right; otherwise, staff have a statutory (and limited) right to unpaid time off. The statutory right to unpaid time off only extends to allowing employees to have a ‘reasonable’ amount of time off where necessary to deal with an unexpected emergency;

o If employees have a contractual right to paid leave to deal with emergencies concerning dependents, it would be a breach of contract not to allow paid time off in accordance with its terms. You should also bear in mind that such a right might have become contractual through custom and practice if employees are normally paid for time off in such circumstances;

o If the right to paid leave is at the employer’s discretion, consider whether you want (or are able) to offer paid time off now that all schools are closed for an undetermined length of time. It has not yet been confirmed whether schools will reopen before September and we are unlikely to have certainty on this for some time. You may therefore want to reserve your position and tell staff that although they are currently being paid in full, you may have to review the position if the coronavirus outbreak continues for a significant amount of time.

• Be consistent in how you treat employees because of the risk of potential indirect discrimination claims if treating employees differently without good reason, for example allowing certain employees paid leave but not others.

• Be as flexible as possible with employees and bear in mind that these are difficult times for everyone and we will all need to adjust our working arrangements for the foreseeable future. Consider agreeing alternatives with employees where they do not have the right to paid time off such as taking annual leave.

If you have any specific concerns regarding your business and workforce at this time, please seek advice from an Employment Law specialist.

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