Can I be sacked if I have no childcare?

childcare while working

Woman working, learns on laptop computer. A young mother on a childcare leave works at home and daughter distracts her. Freelance. Writing, typing. Communication and technology concept. Paperwork.

I understand that you are struggling to work because of childcare problems.

Your employer should discuss your individual circumstances with you. In your discussions with your employer, you should consider whether any statutory rights may be engaged. The statutory rights that may assist you are :

1.    Time off for dependents. Here, an employee is entitled to take reasonable time off in specified circumstances. There is no obligation on employers to pay the employee for the time off and it is generally a short-term “emergency” leave.

2.    Parental Leave. An employee is entitled to take unpaid parental leave of up to 18 weeks per child. The leave can be taken at any time until the child’s 18th birthday, but specific notice requirements must be adhered to.

3.    Furlough. An employer is now permitted to place an employee who is unable to work because they have caring responsibilities resulting from the current pandemic on furlough. This will, of course, be paid in accordance with current Government provisions.

4.    Flexible working Application. Employees with at least 26 weeks’ continuous employment can make a flexible working application. An employer has three months to respond.

The furlough option would be the most favourable for you at present and I would therefore suggest that you try again to secure your employer’s agreement to this arrangement. If this cannot be secured with your employer, you should consider any alternative work pattern/hours that you can do and discuss this with your employer. You should try to agree this informally in the first instance, but then submit a formal flexible working application if you are unable to agree informally.

Please note, however, that a formal flexible working application may take some time for your employer to respond to. In your conversations with your employer, try to be positive and accommodating, focusing on what you can do and how you could make the situation work, remembering, of course, that this situation is only temporary. Another option for you to suggest to your employer would be a period of unpaid leave to deal with the current crisis situation.

If you do not manage to reach agreement with your employer and they insist on you coming back into work despite the absence of childcare, you may have a claim for indirect sex discrimination and I would advise you to take specific legal advice on this. Any claim would have to be submitted to a tribunal within three months and you must go through the ACAS early conciliation process before you may submit a claim.

If your employer dismisses you for not being able to work due to lack of childcare, this may be unfair, depending on the reason cited by your employer and the process followed in dismissing you. You generally need two years’ continuity to submit an unfair dismissal claim and there are strict time limits. You need to submit a claim within three months of your dismissal and you must go through the ACAS early conciliation process before submitting a claim.


Comments [7]

  • Darlene says:

    Any ideas if there’s anything I could possible do?

  • Darlene says:

    I have been told by my manager the owner of the small business wants everyone off furlough. Every woman who has small children are being told if they can’t accept the shift they have been put on they will have to loose the shift and loose pay. They won’t take any of our situations into account and when I try to approach my manager I’m shouted at by him and told he is running a business. Which all just seams wrong to me but he doesn’t.

  • Darlene says:

    Hi, I was taken off furlough in May but my manager is no longer allowing my hours to be flexible even though since my interview, it was made very clear I have to work around my husbands rota for childcare. I usually work every other weekend but my in laws would usually look after our children if we were both at work, which can’t currently be done. I have explained I am loosing 40-50% which is a huge wage loss and being re furloughd would financially be more stable. I was told I can be put back on furlough but my job would not be gaurenteed at the end of it. I have explained my problem with childcare not being avaliable and I was told that my childcare is not their issue. They will no longer be flexible with my working days where as this has never been a problem.
    I’m at a loss of where to turn next. Do you have any advice.

    • Mandy Garner

      Mandy Garner says:

      Hi, when they say your job would not be guaranteed after furlough [you can be furloughed if childcare is an issue], what does this mean? They cannot make you redundant if the role is still there and could risk a claim for unfair dismissal [if you have been there over two years] or sex discrimination [based on the idea that women are the main carers]. You could also take annual leave which continues to accrue on furlough – to reduce your weekly hours, or unpaid leave.

      • Darlene says:

        I was basically being threatened to loose my job if I was to go back on furlough and not work. Our holiday pay also gets paid to us each month then when we take annual leave we don’t get paid for the time we have off as we have already had it paid to us. I usually do on average around 30-35 hours a week, this is usually done around my husbands work rota and school hours and every other weekend. I’m currently being told I can only work 22 hours next week and 9 the following week as they will do rota me in on other days like I usually would have been before all of this happened. When trying to explain that it’s out of my hands and I can’t get child care as the government rules state this, I’m told my child care problems are not their problem.


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