How firms and employees can prepare for impact of teachers' strikes: Toby Pochron

As parents, including myself, across the country brace themselves for the upcoming school strikes (with thoughts of home-schooling during the pandemic lockdown being a not-too-distant memory), working parents may be wondering what their rights are when it comes to taking time off?

Equally, employers may be unsure of how to deal with a vast number of parents requesting time off simultaneously.

Firstly, one should consider their ‘day one’ statutory right to take reasonable time off to provide necessary care for a dependant during an emergency.

However, “necessary care” in this context is normally used for a sudden illness, adverse weather or unexpected school closure.

On face value, the strikes are pre-planned and not an “unexpected” emergency, but we would argue that while the strikes have been planned, it is not guaranteed that they will go ahead and, therefore, could be considered ‘sudden’.

But as we have guidance of potential dates, then you have to ensure you take reasonable steps to find alternative care before they can rely on this leave.

If you are still unable to find alternative care, the employer should allow the leave.

Obviously, employers want to ensure a smooth, functioning business, but the well-being of their staff must take precedence. So, when assessing the amount of time an employee needs to take off, the strikes cannot be considered an ‘inconvenience’ – but is pay still promised?

Depending on the company policy, staff may receive pay during the time off for dependents, but businesses aren’t obliged to do so. Considering the strikes, if you’re needing time off, I’d recommend checking contracts and company handbook just to cover your back.

If day one leave isn’t suitable then parental leave (up to 18 weeks unpaid per child) is another avenue you could take. To be eligible, you have to have worked at the company no less than one year.

The purpose of this is to provide care for a child, making it the perfect option for parents during the strikes. To ensure smooth arrangements, I would stress that you initiate discussions with your employers in a timely manner, well before the strikes begin.

However, parental leave is not only unpaid, but it must also be taken in week blocks so it may be unattractive for employees to consider for this purpose.

Can we not just do flexible working? That would make everybody’s life easier, right?

From an employer point of view, it could be the ideal solution. This could include allowing employees to work from home, swap shifts with colleagues or adjust their working hours.

But I would, carefully consider each flexible working request on its own merits and make it clear to the employee that these arrangements are only a temporary solution to what could be a long-term problem (if the teachers continue with the same force as the rail workers).

Therefore, if all else fails – what options are we left with? Annual leave of course. But, do you really want to waste your precious leave on something that wasn’t even your choice in the first place?

Also, adequate notice is usually needed before it can be booked, I’d like to think employers would be lenient and make exceptions for this.

Businesses have every right to be cautious when dealing with parents who request time off during the school strikes. If an employer denies a parent’s request for time off, it may lead to them taking unauthorised absence.

Whilst employers have the right to take disciplinary action in such cases, they should approach the situation carefully – it is not going to be a comfortable situation where you are asking an employee to choose coming to work over the welfare of a child.

Businesses need to ask whether the absence was due to the employee needing to care for their child or not.

If the employer had no valid reason for denying the request for leave and subsequently takes disciplinary action against the employee, it could lead to a repudiatory breach of contract by the employer which can have costly consequences.

So, what is the best solution? There are several routes working parents can take to provide care for their kids over the strikes and I believe that businesses should adopt a flexible approach and make an exception to meet the needs of their employees.

Communication, trust and mutual understanding are key to finding a solution that minimises disruption for everyone. It’s important for bosses to understand that this is a temporary situation and that their staff will return to their regular working pattern. Support and guidance from both parties will allow for a smooth strike transition.

Toby Pochron is an experienced employment lawyer in Sheffield at national law firm Freeths.​​​​​​​