What is an employee entitled to be paid if they cannot work due to school closures?

What is an employee entitled to be paid if they cannot work due to school closures?

For information generally on employment issues arising as a result of coronavirus (COVID-19), see Practice Note: Coronavirus (COVID-19)—dealing with issues in the workplace.

The situation is continually evolving and in particular:

• the public have now been told to stay at home and may only leave the house for certain, limited reasons. These include travel to and from work, but only where the work cannot be done from home

• non-essential shops and community spaces have been ordered to close, and

• all schools are now closed, except for children of key workers and those who are vulnerable

See the following government guidance:

• guidance on staying at home and away from others full-guidance-on-staying-at-home-and-away-from-others

• guidance for schools, childcare providers, colleges and local authorities in England on maintaining educational provision coronavirus-covid-19-maintaining-educational-provision/guidance-for-schools-colleges-and-local-authorities-on-maintaining-educational-provision

Consideration should be given to:

• the right to pay (see below)

• statutory rights to time off, eg sick pay, time off for dependants (see below)

• the implied term of trust and confidence (see Practice Note: The term of trust and confidence), and

• the risk of indirect sex discrimination claims if women are disproportionately affected by a provision, criterion or practice introduced by the employer, as statistically more women than men are the main carer for young children, (see Practice Notes: Age, gender reassignment, race and sex and Indirect discrimination)

The right to pay

The essence of employment is pay in return for work.

There is a duty to pay wages whenever an employee is ready, willing and able to work. Generally, it does not matter whether there is any work for them to do. As Lord Templeman put it in Miles v Wakefield MDC.

‘In a contract of employment wages and work go together. The employer pays for work and the worker works for his wages. If the employer declines to pay, the worker need not work. If the worker declines to work, the employer need not pay. In an action by a worker to recover his pay he must allege and be ready to prove that he worked or was willing to work’.

See Practice Note: Pay and wages..

Sick pay

Generally, an employee who is unable to work because they are unwell is likely to be entitled to pay during their period of sickness absence under:

• a contractual or occupational sick pay scheme, and/or

• the statutory sick pay (SSP) regime (if eligible)

See Practice Note: Sick pay.

For information on the application of the SSP regime in the context of the coronavirus, see the sections of Practice Note: Coronavirus (COVID-19)—dealing with issues in the workplace titled:

• Employees who are unable to work because of sickness caused by coronavirus

• Employees who self-isolate because of coronavirus—entitlement to SSP

• Payment for those who are required to self-isolate  

Time off for dependants

Except in the case of maternity or other family-related leave, there is no statutory right to paid leave in order to look after children.

An employee is entitled to unpaid time off work under ERA 1996, s 57A in certain circumstances, including where arrangements for the care of a dependant are unexpectedly disrupted or terminated.

The right only covers time off which is taken in order to take action which is necessary to deal with one of these listed emergencies, and is only available for a ‘reasonable’ amount of time off during working hours, such as a day or two.

See Practice Note: Time off for dependants.

Employee unable to work due to school closures

The position of an employee who has additional childcare responsibilities as a result of school closures may vary depending on whether the employee’s workplace remains open, and the nature of the employee’s work, in particular whether it can be carried out from home.

If the employee’s workplace is closed and employees generally cannot work from home, then the  employee with additional childcare responsibilities should be treated in the same way as other employees who cannot work from home.

If the employee’s workplace remains open, and they cannot be at work because of their additional childcare responsibilities, then it is arguable that they are not ‘ready, willing and able to work’, and therefore not entitled to pay (see above).

However, in those circumstances, the employer may wish to consider:

• whether the employee is able to carry out some work from home, eg part-time or outside their normal working hours

• if the employee cannot work from home, whether they can change their work pattern, eg by working flexibly, short-time (on a reduced salary) or at different working times. This may be a useful option eg in the case of essential shops that are staying open, if another parent (or the employee’s partner) is able to care for the child outside normal school hours

• whether the employee can use their paid holiday entitlement, (see Practice Notes: Holiday and Holiday pay)

If, in principle, it is possible for the employee’s work to be done from home, it may be helpful to have a discussion with the employee about whether they can continue to work while schools are closed and their children are at home, which may include eg:

• the additional childcare responsibilities (ie the age of the child or children and the extent to which they need supervising)

• whether there is a co-parent or partner who can share additional childcare responsibilities – it may be, for example, that the employee is able to work shorter hours (for a reduced salary) or outside normal working hours, taking it in turns to look after their children. Clearly, it will not be appropriate at this time to expect older grandparents or other relations to provide childcare

As mentioned above, employers should be aware of potential indirect sex discrimination if working mothers are disproportionately affected by policies, practices or measures introduced by the employer.

If employees cannot work from home (eg in the case of a food retail business), and an increasing number of employees are absent due to sickness, self-isolation or childcare or other caring responsibilities, it may become impossible for the business to continue.

In the context of coronavirus (COVID-19), the government has announced the coronavirus job retention scheme (CJRS), under which HMRC will reimburse 80% of furloughed workers’ wage costs, up to a cap of £2,500 per month, per employee.

For more details, see Practice Note: Coronavirus job retention scheme.

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