It seems, at the moment, that each week brings the news of another strike, and more disruption for those working in the UK. If it’s not struggling to get to work because of transport strikes, it’s failing to get Christmas presents to loved ones on time due to the postal service striking. Now, however, there is the news that teachers in England and Wales will be joining their colleagues in Scotland in taking strike action. But what does this mean for working parents? In this article, Croner-i Content Consultant and employment law researcher, Stacie Cheadle, examines the most important questions around the impending school strikes, and how these might be answered.
England and Wales
Strike action will take place on the following days.
Individual schools will be affected for a maximum of four days; however, government guidance says schools should stay open if possible.
Almost all primary and secondary schools closed as a result of national and local strikes; 16 days of action began on 16 January.
It remains unclear exactly which schools will be affected; however, this will cause widespread disruption.
There is no legal right for an employee to take time off to look after their child when the child’s school is closed due to teacher strikes. If the strike will affect them and they are unable to make alternative arrangements for the care of their child, it will be a matter of discussion between the employer and employee. Doing this in good time (as much as is possible) should avoid the situation where an employee fails to attend work without making contact, resulting in an unauthorised absence.
However, whilst employees do not have to be given the day off, employers should make efforts to be reasonable in the circumstances. Some alternative options could be:
Parental leave is available to parents who have worked for an employer for at least a year and have children under the age of 18. Its purpose is to enable the parent to spend time with their child, so theoretically could be used to cover time off needed to look after a child when their school is closed because of teacher strikes, but the logistics may mean it is not the best option for the employee.
Unless there are other, more flexible rules in place for taking parental leave, employees have to give 21 days’ notice of parental leave and in some cases strikes are arranged with 14 days’ notice, so the minimum notice requirements may not be met. In addition, parental leave is taken in minimum blocks of one week unless the child in relation to whom the leave is taken is disabled, in which case it can be taken in minimum blocks of one day. If the parent of a non-disabled child was to take one day of parental leave, one week is taken from their remaining entitlement even though they only took one day off. On top of all of that, parental leave is unpaid, and is therefore unlikely to be the best option for many employees.
Time off for dependants
Time off for dependants is a right available to employees who need time off to deal with an unforeseen emergency affecting a dependant, which includes the unforeseen disruption to normal care arrangements for their child. It is usually used for short notice disruptions, eg when a child wakes up ill one morning and so cannot go to school that day. However, it is not solely restricted to those very short notice disruptions. In Royal Bank of Scotland plc v Harrison, the Employment Appeal Tribunal (EAT) held that it can be used for something that an employee knew about in advance provided that they had tried to make alternative arrangements but had been unable to, which could be the case with a known school closure due to striking teachers. In most cases, the employee will know that they have been unable to sort out something else and so discuss with their employer what will happen on the day, however, even where this doesn’t happen, time off for dependants is not off the table. It is unpaid, unless the employee’s contract says that it will be paid, and so it is likely employees will only use it as a last resort.
So far, what has been discussed has been in relation to employees. But what about workers who may be in the middle of an assignment when their child’s school closes? Do they have the same options?
No, unfortunately for this group, they do not. Rights such as parental leave and time off for dependants are only given to employees. As such, where a worker is impacted by the strikes their options are much more limited. They include:
Anything else is either unauthorised leave, or down to the employer’s discretion, as the same protection is not given to workers as employees — there is no right not to suffer a detriment for exercising rights in respect of family and domestic leave for workers under s.47C of the Employment Rights Act 1996 as there is for employees. This leaves workers in a much more vulnerable position, such as where unauthorised leave leads to termination.
Of course, teachers are not the only ones working in schools. So, the question must be asked about the ancillary staff, in particular those provided by third parties, such as external caterers, third-party cleaning contractors and school bus drivers. With no children in school, there will not be any work to do. So, what can employers do if their staff are impacted by this?
Lay-off is the obvious answer, although only if there is a relevant clause in the individual contract of employment. If that is not possible, it could be agreeing a day of unpaid leave (unlikely), forcing the employee to take annual leave (as long as twice the notice is given as days to be taken), putting them on other duties (again, if contracts allow) or paid leave. This is something that should be discussed in advance, and so employers who might be affected should speak to the individual schools they service to find out if so.