As schools start their long summer holiday, working parents face the annual childcare headache. For many families this involves juggling a patch-work of arrangements. Inevitably, there may be times during the summer months when things don’t run smoothly for those facing this childcare conundrum. So, what are they relevant workplace rights parents should be aware of?
Am I entitled to leave if my childcare arrangements fall through?
All employees are entitled to a reasonable amount of time off to deal with the unexpected breakdown of arrangements for the care of a dependant. This rule applies universally, regardless of the amount of time they have worked for their employer, whether they are full or part-time and whether they are on a temporary, fixed-term or permanent contract.
However, an employer does not have to pay the employee for the time off work as the statutory right is only to take the time, not to be paid.
Note that the right only applies to those who are working under a contract of employment and it does not cover those who are workers or self-employed.
The point of allowing employees this time off is to enable them to deal with something unexpected. It does not extend to planned time off, for example to enable a parent to escort their child to a medical appointment.
The right to time off is also not intended to allow the employee to care for the child themselves on an on-going basis, rather to deal with the immediate crisis and put in place alternative arrangements.
In the case of Royal Bank of Scotland v Harrison, an employee had two weeks’ notice that her childminder would be unexpectedly unavailable for one day. She tried and failed to find alternative cover during that time. The Employment Appeal Tribunal rejected the Bank’s argument that the disruption to care had not been unexpected. It ruled that there was no necessary time element; the disruption was unexpected at the time the employee learnt of it and she was therefore entitled to the time off.
The right to unpaid leave is also available where a dependant falls ill or is injured to enable the parent to make arrangements for the provision of their care (as opposed to actually caring for the child themselves on an on-going basis).
How much time off is “reasonable”?
The legislation does not specify how much time off an employee is entitled to. Every situation will depend on the particular circumstances of the individual involved and the context. In some cases, it may only be a matter of a few hours needed to organise alternative childcare. In most cases, it is likely that no more than a couple of days would be considered reasonable by an employer.
What can I do if my employer will not approve my holiday request?
Many working parents will be in a similar situation during the summer holidays and will be seeking to use their annual leave to assist with childcare during that period. This can be difficult for an employer to deal with fairly as it may not be able to approve all requests – particularly in businesses which are busy during the summer time.
While an employer can of course consider its operational requirements, it also needs to make sure it is achieving this in the least detrimental way for employees. Larger employers will have more latitude than smaller employers and will be expected to do more.
A policy which grants leave on a “first come, first served” basis or through a ballot may not be enough to ensure fairness. Employers should consider who was able to take leave in previous years and who really needs to take leave. For example, a single parent with no family living close by is likely to have few other options.
It goes without saying that employees need to familiarise themselves with their employer’s holiday policy. They must ensure they observe any time limits for making holiday requests and never make concrete arrangements (such as booking flights) before their request has been formally approved by their employer.
Where an employee’s request for holiday is turned down and any informal attempt to resolve this with their manager has failed, then it will be necessary to bring a formal grievance using the employer’s grievance procedure.
If the holiday request is being made in order to enable a woman to care for a dependant, there is likely to be a good argument that this is indirect sex discrimination. Employment tribunals generally accept that more women than men have childcare responsibilities and a holiday policy which does not allow annual leave, or only allows a few employees to take leave, over the summer holiday period will particularly disadvantage women.
What other options do I have to cover my childcare arrangements over the summer holidays?
Many working parents will be using a combination of childcare options over the summer break, such as holiday clubs, time with grandparents or parents taking annual leave.
Taking unpaid parental leave over the summer could be another option, as employees who are parents of a child under the age of 18 can take up to 18 weeks unpaid parental leave. This is a form of statutory leave to allow parents to care for their child and return to the same job afterwards.
However, parental leave is only available to those who have been employed for at least one year. Leave must be taken in blocks of one week (unless the child is disabled, when it can be taken in shorter blocks) and no more than four weeks’ parental leave per year can be taken in respect of any child or dependant.
An employee must give their employer at least 21 days’ notice of their intention to take parental leave. However, an employer can postpone the leave for up to six months if it considers that the operation of its business will be unduly disrupted, so this is not a water tight solution.
Another option would be to consider making a formal flexible working request to permanently vary your employment contract. This could involve different hours/ days of work during the summer holiday period only or be a full blown change to term-time working. However, an employer is entitled to refuse a flexible working request if it has good business reasons for doing so.
Conclusion to summer holiday childcare
In an ideal world, an employee would be able to agree ad hoc arrangements informally with their employer to help them cover childcare over the summer holidays. For example, temporarily working from home or making up hours later on in the year may be a viable arrangement. Sadly, this is rarer in practice than it could be. For parents with inflexible employers, the final option may be to consider self-employment.