COVID19 Employment Law Update #1


Working & Parenting From Home

As a result of the recent “lockdown” and government guidance, many of us are finding ourselves working from home and caring for our children. Not only are many employees concerned about the juggle, many are also concerned about the effect that this may have on their employment and their job security. Likewise, employers are wondering how to manage this new working territory and the implications for their business. Below I have answered some of the most common questions around home-working and parenting during the pandemic.

My partner and I are sharing childcare during the day. What happens if I am unable to attend a Zoom meeting arranged by my boss?

Ordinarily, from a contractual perspective, you are required to be available to work during your contracted hours. Even if home working is not an express term of your contract, there may still be a clause providing that your employer may ask you to work from different locations within reason. Alternatively, it could be an implied term that in circumstances like this where there is a government mandate for people to work from home where possible, that your employer is entitled to require you to work from home even if there is no express location provision within your contract.

Either way requiring you to work from home is something that may be considered a variation of the contract, requiring your consent. You should therefore discuss with your employer how your home working arrangements will work and how you are still able to fulfil your duties.

Employers should consider their home working policy and make appropriate changes in light of the current circumstances, and share this with their employees.

It is worth noting that the mutual implied term of trust and confidence will continue to apply to issues that may arise as a result of the coronavirus pandemic and as such neither employer nor employee should act in a way which would undermine this.

Being unable to attend one virtual meeting set by your boss is unlikely to result in disciplinary action. However, in order to protect yourself as an employee, you should give your employer as much notice as you can of the challenge you are facing attending the meeting and explore the possibility of the meeting being moved to a more convenient time or for you being excused.

Technically, an employer is able to take disciplinary action in respect of home-workers, in appropriate circumstances, such as for refusing to obey a reasonable instruction. However, it would be a brave employer that sought to do so in these circumstances on the strength of one or two missed meeting. Employers should also be aware of the possibility of indirect sex discrimination of women who are primary carers of children in such situations.

I am a single parent and cannot work from home and look after my child at the same time. What are my options?

Again, you should first have a direct discussion with your employer as all employers should be prioritising flexibility in these times.

In addition to considering whether you are able to use your annual leave, you should check your contract for parental leave as this may provide for enhanced parental leave. Otherwise, you are entitled to a maximum of 4 weeks’ unpaid leave per year (up to a total of 18 weeks) for each child under 18.

Similarly, an employee may be entitled to take unpaid ‘Dependant Leave’ under Section 57A of the Employment Rights Act 1996 for a “reasonable amount of time…because of the unexpected disruption or termination of arrangements for the care of a dependant”, although this provision is generally envisaged as covering emergency incidents rather than a general state of affairs.

UPDATE: The Government has updated its Furlough Guidance to state that;

“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.” ( https://www.gov.uk/guidance/claim-for-wage-costs-through-the-coronavirus-job-retention-scheme ). You can therefore ask your employer to put you on furlough where you are unable to work due to childcare responsibilities. Your employer is not obliged to agree but it seems unlikely that an employer would not agree in these circumstances.

Will I still get paid in full if I am looking after my child for some of the time at home during COVID-19?

Where you are still working, albeit from home, you should be paid as normal.

Where an employer is aware that schools are shut and so all children will inevitably be being looked after at home during work hours, any failure to pay an employee at the normal rate of pay (without evidence that the employee simply isn't doing the work) could give rise to a claim for an unlawful deduction of wages and a breach of a fundamental term of contract (as well as a breach of the implied term of trust and confidence).

In certain circumstances, this could lead to a constructive dismissal if the employee chose to resign in response.

As can be seen, there are a number of issues to consider as a result of home working during the coronavirus pandemic. For the most part, employers and employees should be able to work together to find a solution. The primary rule for both employer and employee during this period should therefore be to talk to each other, engage with each other, and above all be reasonable, flexible, and accommodating with each other.

However, where there are real business needs or difficulties, further advice should be sought. If you are an employer or an employee with any questions about how COVID-19 is affecting your work, please do not hesitate to contact me at chambers

P.S. Thank you to Peppa Pig and You Tube Kids for making the writing of this article possible.

** (this article should not be taken or relied on as legal advice and it is important that you speak to a lawyer to get specific advice on your personal situation).

Nina Roberts

1 Essex Court

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