Time to answer another interesting question which came up at our Managing Working Parents webinar a couple of weeks ago:
Where the employee is unable to come into work for childcare reasons, what are my duties to provide him with work suitable to be done from home?
This was a question which we might have hoped would be largely in the past by now, but which has unfortunately taken on new significance through the second wave of COVID-19 and renewed school closures.
The starting point answer is that as a matter of black-and-white law, there are no such duties. Put bluntly, the employee’s domestic position and the tension which that may create with his work is for him to resolve.
However, that is much too simplistic an approach in practice. Before any adverse action is taken against that employee, whether that is suspension of pay, disciplinary sanction or even dismissal, the employer will need to be seen to have considered how that situation could be avoided.
As employer, you will need to start by understanding the extent of the issue – how long are the childcare obligations going to last? Is it for the foreseeable, or just a few weeks until a relative or friend is able to stand in? Is it all day or just at pick-up/drop-off times? Is it just that someone must be in the house to avoid the neighbours reporting him for child abandonment or that the employee will have to be hands-on from hour to hour?
Depending on the circumstances, you might agree that the employee takes some leave, out of holidays if paid, or otherwise unpaid. You could look at your vacancy list to see if that includes any role for which he might be suitable and which could be performed from home. Maybe you could offer him a role which is less senior but could more easily be done compatibly with childcare and as an interim measure agree a reduced salary rate with him to do it – there is no obligation that the employee’s salary must be maintained if the only means of preserving his employment is via his agreeing to take a more junior job.
Alternatively, you could consider whether it would be appropriate to swap his duties with those of another employee for a period. You would have to be very careful that this was done only by agreement with that other employee (or a minimum through the legitimate exercise of a flexibility cause in his contract) since otherwise you would be straight into constructive dismissal territory. Any such swap would need to be carefully documented so that both employees knew it to be temporary only, and that they understood the position should it be necessary for example, to make that role redundant and who would be exposed – the employee whose job it normally was, or the one who was holding the parcel when the music stopped?
Separately, you would need to consider whether the role in question could be done not just from home, but from home for childcare purposes. Having very young children in the house requires the employee to be permanently on DefCon Four. Believing that he can focus adequately upon his work with one ear open for the noise of things breaking, hysterical sobbing or ominous silences may stretch the credulity of some employers. However, while you are entitled to ask the employee if he is confident that his work and childcare responsibilities are not incompatible, it is probably best not to make that decision for him. Instead you should offer the role on a trial basis terminable by either side but by reference to pre-agreed success criteria like any other flexible working application (which is essentially what this is).
If and when the employer has considered the options, ideally in consultation with the employee, but there remains nothing which can be offered to him which does not cause material prejudice to the business or other employees, that is the limit of its responsibilities. In the end, all other avenues exhausted, the employer will be entitled to dismiss an employee who cannot perform a useful role because of long-term childcare commitments.
But two other considerations to bear in mind. First, the employer’s decision that a particular role cannot be done from home will count as a provision, criterion or practice for indirect discrimination purposes (probably still more so if the reason for that decision is expressly linked to the parallel child-care obligation). Therefore above and beyond the need to show that you acted reasonably for unfair dismissal purposes, that stance will need to be justifiable.
Second, the unconscious sympathies of the Employment Tribunal in these circumstances will almost inevitably be with the employee even at the best of times, which clearly these are not. Therefore it will pay the employer to be seen to treat a conflict between children and work as a joint problem to be addressed together, and not just an issue of the employee’s own making which he must sort out by himself, or else.