Shared Parental Leave [SPL] legislation came into force in April 2015. The legislation,...read more
I am returning from maternity leave and there is no childcare available. I’ve been trying to take some time off to care for the baby, but every type of leave until I can sort out some help is being rejected. I have suggested: furlough, unpaid leave (emergency to take care of dependant, parental leave or anything they could think off) and it was rejected due to the fact, they said, that someone else is doing my job at the moment and it is not sustainable for the business revenue. They offered flexibility by letting me take accrued holidays in the afternoon, but they need me for a full-time job with weekly goals to attain. I am now considering resigning as the only way to be sure I will be available to take care of my child if nurseries don’t reopen anytime soon. I have a three-month notice period. What should I do?
In this situation all of the suggested leaves you have mentioned could be appropriate for you, but I don’t think that any will provide you with the solution you need at the moment. Briefly, taking each of the options in turn, you have suggested that you have asked to be put onto furlough. This would be a reasonable suggestion and would allow you to maintain your job, whilst not working at all and whilst your employer is having your salary paid by the government (up to the relevant limits) because you are not doing any work. Unfortunately, however, your employer needs to agree to you being placed on furlough and you can’t insist on this. The furlough provisions are, of course, only currently scheduled to last until the end of June. Your employer’s objection to you being on furlough may well be that they actually need somebody to do your work and if you are on furlough you are not allowed to do any work for your employer.
Emergency time off for dependents would be an option for you, but it is envisaged that this leave may be limited to a couple of days. It is only really aimed at dealing with emergencies. If your employer refuses you permission, however, you may complain to an Employment Tribunal within the relevant time limit and please note that you must go through the ACAS pre-conciliation process before doing so.
Given that the right to emergency time off to care for dependents is limited in terms of the time you could take off work, a period of parental leave would be more appropriate in your situation. However, under the default scheme you cannot take more than four weeks leave in every particular year. Again, therefore, this does not provide you with an ongoing solution. If your employer does not behave appropriately and lawfully regarding an application for parental leave, i.e. by unreasonably postponing a request or preventing or attempting to prevent the taking of leave you can bring a claim to Employment Tribunal within the relevant time limit. Again, you must go through the ACAS early conciliation process before you would be able to bring such a claim.
I consider that, although the various leaves you have suggested would assist you, this assistance would only be temporary. I would suggest therefore that you discuss this matter with your employer to see if you can come to some agreement on a temporary basis until the lockdown is lifted. Can you suggest that you will work fewer hours? Can your partner share childcare? Can you work amended hours? You could submit a flexible working request, but this will take some time to deal with so I would suggest you try to deal with this informally with your line manager in the first instance. Let your employer know that you are trying to explore every angle and that you are willing to be as flexible as possible in order to make the situation work. Emphasise, of course, that this is only a temporary situation until lockdown is lifted and your childcare arrangements resume.
You asked about your notice period should you need to hand in your notice. Not working for your entire notice period would give your employer a breach of contract claim and it could pursue you for any losses sustained as a result of the breach. However, it is unlikely that your employer would pursue you for this given the circumstances of you not being able to work your notice. You may also be able to come to some arrangement with your employer regarding your notice period.
*Helen Frankland assisted in answering this question.