Coronavirus (COVID-19) – Family friendly rights

Family friendly rights in the workplace are difficult enough for employers to manage in usual circumstances. In this blog we look at the particular challenges faced by employers and employees when employees are returning from maternity leave and similar family leave (such as adoption, shared parental and parental bereavement leave) during the Coronavirus pandemic.

Family friendly rights – Maternity leave, adoption, shared parental and parental bereavement leave

We look at what rights employees returning from maternity leave and other family leave have and whether employees on maternity leave have special protection from redundancy. In particular we look at the exception allowing employers to place employees returning from maternity and similar leave onto furlough and the options employees and employers have to postpone employee’s return to work or alter working arrangements on their return.

We also look at how employers should keep in touch with employees on maternity leave, shared parental and adoption leave and the special protections women on maternity leave have in redundancy situations which employers should be mindful of.

Can employees returning to work from maternity or other family leave be furloughed?

Yes. Employees returning to work from maternity, adoption, shared parental or parental bereavement leave can still be furloughed.

As set out in our previous blog “Furlough Scheme – Changes to contribution and ‘flexible furloughing’” the Coronavirus Job Retention Scheme (CJRS) effectively closed to new entrants after 10 June 2020 as part of the move to flexible or part time furloughing from July 2020.

The original announcement of this cut-off date placed employers and employees in a difficult position in relation to employees that were on maternity, adoption or shared parental leave and due to return to work after 10 June 2020. No specific exemption was communicated and therefore it was unclear whether these employees would remain eligible to join the CJRS when they came back to work. This uncertainty resulted in some employees choosing to reach an agreement with their employer to prematurely end their leave so they could be placed on furlough prior to the cut off date.

On 9 June 2020 the Government announced that an exception would apply to employees on statutory maternity, paternity, shared parental, adoption or parental bereavement leave. The exception means that employees who are currently on this type of leave and who return to work in the coming months will remain eligible to be furloughed for the remainder of the CRJS.

Importantly this only applies where they work for an employer who has previously furloughed employees. These employees can be placed on furlough in the normal way on their return to work.

For further details of the CJRS scheme generally please see our blog “The Coronavirus Job Retention Scheme and the furloughed worker“.

Can employees extend their maternity leave or other family leave if they want to delay their return to work?

There are several reasons that employees may wish to postpone their return to work due to the Coronavirus pandemic. Although some nurseries and childcare settings are now cautiously re-opening others remain closed and overall availability of childcare has significantly decreased. Employees who had intended to rely on grandparents to provide childcare may also be unable to now access this.

Employees and employers have several options if they want to extend their maternity leave, shared parental leave or adoption leave. They may request parental leave, time off for dependants leave, annual leave or other unpaid leave or a sabbatical as set out further below:

• Parental leave – Employees can request up to four weeks’ unpaid parental leave a year to care for their child, provided they have worked for their employer for at least a year.
  Employees normally need to submit their request for parental leave 21 days in advance. Parental leave can commence immediately on the expiry of maternity, shared parental or adoption leave. The employer can postpone an employee’s leave where it considers that the operation of its business would otherwise be unduly disrupted. However, in the current situation many employers may be willing and able to accommodate requests for parental leave.
• Time off for dependants – Employees also have the right to take time off for dependants because of an unexpected breakdown in childcare arrangements, This leave usually lasts only a few days, as the leave is to enable employees to make alternative childcare arrangements, as opposed to care for the child themselves. However, it may be able to last a longer in the current crisis if parents have no childcare options available.
• Annual leave – Employees will accrue annual leave during their maternity leave, shared parental leave or adoption leave. They may wish to take any accrued and untaken holiday at the end of their maternity leave, which will have the effect of extending their period of absence from the workplace.
• Paid leave – There is no obligation on employers to offer additional paid leave. However, employers that wish to do so could agree a period of paid leave to assist employees in this situation.
• Unpaid leave – There is no automatic right to other unpaid leave. However, it is entirely open to employees and employers to agree an extended period of unpaid leave due to the Coronavirus pandemic.
• Sabbatical arrangement – Many employers have existing sabbatical schemes allowing employees to apply for a period of unpaid leave by way of a sabbatical from work. The sabbatical agreement will set out employee’s entitlements during the sabbatical period and on their return. Even if there is no official scheme employers may be willing to agree to a sabbatical arrangement in the current circumstances. 

Can employees returning from maternity leave or other family leave ask to alter their working arrangements due to lack of childcare?

Some employees may be unable to return to their normal working hours or arrangements in the current situation due to lack of availability of childcare once their maternity leave or shared parental or adoption leave ends.

Returning employees have a right to make an informal or formal request for flexible working. This could involve reducing hours, working from home or otherwise altering their working arrangements.

It is accepted by all that these are unusual times. Employers should attempt to be as flexible as possible in allowing staff to work from home or alter their hours so the employees can provide care and continue to carry out their role. Employers should initiate these discussions as soon as possible to avoid uncertainty and manage expectations nearing the end of the employee’s period of maternity or other leave.

Changes that could be agreed include:

• Temporarily reducing employee’s hours (with or without an accompanying reduction in pay)
• Altering the timing of the employee’s hours, for example allowing them to make up at hours at weekends or evenings instead of 9 to 5.
• Allowing the employee to use annual leave to reduce their hours, to the extent that annual leave is available (for example taking 1 day a week as annual leave)

Employees that have been employed for at least 26 weeks have the right to make a formal flexible working request if they are unable to reach an agreement informally. Employers must consider these requests in a reasonable matter and must notify the outcome to the employee within a three-month decision period. Employers can refuse requests on specified business grounds.

With statistics demonstrating that women have been particularly impacted by the pandemic due the burden of childcare falling disproportionately on women, employers should be mindful of discrimination claims connected with failure to accommodate employee’s needs in this respect.

For more information in relation to dealing with return to work issues generally please see our page “Coronavirus (COVID-19) and returning to work”

Can employers change an employee’s role when they come back from maternity leave, shared parental and adoption leave?

Employees returning from maternity leave, shared parental or adoption leave are entitled to return to the same job in which they were employed before their absence. Their terms of employment must be the same as or no less favourable than they would have been had they not been absent.

If an employee has taken maternity, adoption or combined maternity and shared parental leave of more than 26 weeks, the employer has added flexibility in that if there is some reason (other than redundancy) why it is not reasonably practicable for the employer to permit the employee to return to the same job, the employee is entitled to return to a different job instead. The different job must be both suitable for her and appropriate in the circumstances and the terms and conditions must not be less favourable than they would have been had she not been absent.

This might apply in a business reorganisation situation. Of course if this was the case the employer would be obliged to consult with the employee regarding the proposed changes in the normal way before the employee’s return. A simple preference for someone else to perform the role would not fall within this exception.

Do employees on maternity leave have special protection from redundancy?

Employees that are on maternity leave or other family leave should be consulted on any changes affecting their role in the normal way.

Employees that are on maternity leave, shared parental or adoption leave can be placed at risk of redundancy and can be made redundant in the normal way, providing of course a fair process is followed.

Employees on maternity leave have special protection in redundancy situations in that:

• If they are made redundant because they are on maternity leave this would amount to direct discrimination and the employee could bring a discrimination claim.
• Adjustments should be made to any redundancy selection criteria that might indirectly discriminate against employees on maternity leave, to ensure they are not placed at a disadvantage because they have been absent or pregnant. For example, if attendance is a criterion then pregnancy related absence should be discounted.
• Employees on maternity leave have an automatic right to be offered any suitable alternative vacancies in preference to other employees if they are selected for redundancy.

How should employers keep in touch with employees during their maternity leave or other family leave?

Employers may and should make reasonable contact from time to time during an employee’s maternity leave, shared parental and adoption leave.

This contact is usually used to keep the employee informed of important developments at work. Employers and employees should discuss the arrangements for contact and tailor this to the employee’s wishes. Employers should be mindful that given the uncertainty created by the Coronavirus pandemic more regular contact may be required than normal to ensure these employees are kept informed.

Employers will need to consider how they can facilitate employees return to work given the Coronavirus pandemic. For example this may mean arranging remote IT training and provision of equipment if the employee will be working from home, or training and information on new health and safety requirements if returning to work on site.

Employees on maternity leave, shared parental or adoption leave will need to be consulted with in the normal way in relation to any changes affecting their employment.

If you would like more information on family friendly rights then please contact Tabytha Cunningham.

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