Coronavirus: Caring responsibilities

Yesterday, Wednesday 18 March, the number of global COVID-19 cases passed 200,000, with 8,000 people having died from the virus. The number of cases in the UK has risen sharply, by 676 cases in 24 hours, to a total of 2,626, with 104 deaths.

The Prime Minister announced this evening that all schools would close from Friday afternoon until further notice. However, schools were told that they will need to continue to look after vulnerable children and the children of key workers, such as those working for the NHS, the police, and supermarket delivery drivers, including during the Easter holidays. Further details are to follow. The Education Secretary, Gavin Williamson, also confirmed that all exams in England and Wales due to take place in May and June have been cancelled, including GCSEs, A-levels and SATs, and performance tables will not be published for this academic year. Mr Williamson promised to “make sure that every child gets the proper recognition they deserve” in terms of qualifications but, at the moment, it is unclear how this will be achieved.

For many working parents, the closure of schools will present enormous childcare issues, particularly given the advice that grandparents should not look after their grandchildren and instead should be isolating at home and “largely shielded from social contact”.

So, what are employees’ entitlements to time off to care for elderly relatives who become unwell or children once the schools have closed?

Employees have a statutory right to take a “reasonable” amount of unpaid time off work where necessary:

• to provide assistance where a dependant falls ill;
• to make arrangements for the provision of care for a dependant who is ill;
• in consequence of the death of a dependant;
• to deal with the unexpected disruption or termination of arrangements for the care of a dependant;
• to deal with an unexpected incident which involves the employee’s child during school (or another educational establishment’s) hours.

The term “dependant” applies to the following:

• the employee’s spouse or civil partner;
• the employee’s child;
• the employee’s parent;
• a person who lives in the same household as the employee, otherwise than by reason of being the employee’s tenant, lodger, boarder or employee.

In order to be entitled to the right to time off, the employee must inform their employer as soon as reasonably practicable of the reason for their absence and how long they expect to be away from work (unless this is not reasonably practicable).

Employers should check their policies and employees’ contracts of employment. Some employers offer paid time off to care for dependants in emergencies for a limited period of time. Any discretion for the employer to pay full pay to employees for time off to care for dependants should be exercised reasonably and consistently, in order to avoid discrimination claims.

The right to time off to care for dependants is, however, to “reasonable” time off to deal with an “immediate crisis”; it is not designed to enable an employee to take time off to provide personal care for a sick dependant or ongoing childcare for a child beyond the reasonable amount necessary to enable them to deal with the immediate crisis. However, given the unprecedented circumstances we are currently in, employers may decide to extend unpaid time off for employees to care for a dependant (and contractual paid time off to care for a dependant if this is in place) longer than would usually be offered (this tends to be 2–3 days).

Employees who are refused permission to take time off to care for a dependant can bring a claim in the employment tribunal and an employee dismissed for taking such time off would have a claim for automatically unfair dismissal.

Given the current suggestion that schools may not reopen after the Easter holidays, employers should consider all possible options to enable employees to care for their dependants, including allowing employees to take holiday to cover the above situations or parental leave, which is also unpaid (unless the employer offers paid parental leave).