It has been announced that teachers have balloted to strike for a total of 7 days across February and March, with the first day of strike action having taken place on 1 February and the next due on 14 February, both of which affect all schools across England and Wales and later dates affecting localised areas.
Whilst many are in support of strike action, childcare is a cause for concern among many working parents. The question of how this will be managed for the upcoming strikes is one that has been raised by working parents and their employers alike.
The law and how this can be applied to strike action:
The answer can be found in Section 57A of the Employment Rights Act, which covers time off for dependants leave.
Employees are entitled to take reasonable, unpaid time off (some employers choose to pay their employees for this, so it is worth checking contracts and policies to see if this is covered) to care for dependants where it is necessary. To qualify for this right, an employee must tell their employer the reason for the absence as soon as reasonably practicable and how long they expect to be off work, unless it is not reasonably practicable to confirm the reason until they have returned to work.
In terms of what is classed as ‘necessary’, this is as follows:
- To provide assistance on an occasion when a dependant falls ill, gives birth or is injured or assaulted.
- To make arrangements for the provision of care for a dependant who is ill or injured.
- In consequence of the death of a dependant.
- Due to the unexpected disruption or termination of arrangements for the care of a dependant.
- To deal with an incident which involves a child of the employee and which occurs unexpectedly in a period during which an educational establishment which the child attends is responsible for him or her.
Thinking about this in the context of strikes, the right to take dependants leave as a result of unexpected disruption is likely to be the reason used for this kind of situation.
Although some may argue that ’unexpected disruption’ should not include the strike days, given these have been planned in advance, the Employment Appeal Tribunal (EAT) in Royal Bank of Scotland plc v Harrison confirmed that ‘unexpected’ does not involve a time element. The EAT rejected the respondent’s argument that the claimant’s lack of child care could not be seen as ‘unexpected’ on the basis that she was advised of her child minder’s absence 2 weeks ahead of time. The outcome of this case could therefore be applied to a strike situation in which the public are advised in advance of the relevant strike days.
Other options:
Another option available to some employees is parental leave. This is available to those who have been employed for at least 12 months and have a child who is 18 or younger. It’s only available to employees and not to self-employed, agency workers or contractors unless previously agreed. Employees can take up to 18 weeks off, but this can be restricted to four weeks off per year at the discretion of the employer.
Dependants leave and parental leave are generally unpaid options, which might not be viable for some parents and families. Another option would therefore be to take annual leave to cover the strike days, or if the employee is able to work from home, employers may consider allowing them to do so on strike days to save them having to take the day unpaid or using up their annual leave entitlement.
It has been announced that teachers have balloted to strike for a total of 7 days across February and March, with the first day of strike action having taken place on 1 February and the next due on 14 February, both of which affect all schools across England and Wales and later dates affecting localised areas.
Whilst many are in support of strike action, childcare is a cause for concern among many working parents. The question of how this will be managed for the upcoming strikes is one that has been raised by working parents and their employers alike.
The law and how this can be applied to strike action:
The answer can be found in Section 57A of the Employment Rights Act, which covers time off for dependants leave.
Employees are entitled to take reasonable, unpaid time off (some employers choose to pay their employees for this, so it is worth checking contracts and policies to see if this is covered) to care for dependants where it is necessary. To qualify for this right, an employee must tell their employer the reason for the absence as soon as reasonably practicable and how long they expect to be off work, unless it is not reasonably practicable to confirm the reason until they have returned to work.
In terms of what is classed as ‘necessary’, this is as follows:
- To provide assistance on an occasion when a dependant falls ill, gives birth or is injured or assaulted.
- To make arrangements for the provision of care for a dependant who is ill or injured.
- In consequence of the death of a dependant.
- Due to the unexpected disruption or termination of arrangements for the care of a dependant.
- To deal with an incident which involves a child of the employee and which occurs unexpectedly in a period during which an educational establishment which the child attends is responsible for him or her.
Thinking about this in the context of strikes, the right to take dependants leave as a result of unexpected disruption is likely to be the reason used for this kind of situation.
Although some may argue that ’unexpected disruption’ should not include the strike days, given these have been planned in advance, the Employment Appeal Tribunal (EAT) in Royal Bank of Scotland plc v Harrison confirmed that ‘unexpected’ does not involve a time element. The EAT rejected the respondent’s argument that the claimant’s lack of child care could not be seen as ‘unexpected’ on the basis that she was advised of her child minder’s absence 2 weeks ahead of time. The outcome of this case could therefore be applied to a strike situation in which the public are advised in advance of the relevant strike days.
Other options:
Another option available to some employees is parental leave. This is available to those who have been employed for at least 12 months and have a child who is 18 or younger. It’s only available to employees and not to self-employed, agency workers or contractors unless previously agreed. Employees can take up to 18 weeks off, but this can be restricted to four weeks off per year at the discretion of the employer.
Dependants leave and parental leave are generally unpaid options, which might not be viable for some parents and families. Another option would therefore be to take annual leave to cover the strike days, or if the employee is able to work from home, employers may consider allowing them to do so on strike days to save them having to take the day unpaid or using up their annual leave entitlement.