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Ongoing Strike Action - How best to manage unexpected leave?

By Heather McKinlay

This month has seen the UK's biggest day of industrial action in over a decade as teachers, university staff, train drivers, civil servants, bus drivers and security guards all went on strike. This action affected many companies and employers, as some working parents struggled to make childcare arrangements and this then resulted in them missing work to stay home and look after their children.

With ongoing strike action planned in the coming months, just how should employers deal with unexpected leave?

As with any other similar ‘unforeseen circumstances’, the key is a degree of flexibility and common sense on both sides if employers and their employees wish to limit any disruption. If alternative childcare cannot be found, it would not generally be advisable for employers to refuse a working parent the day off. Employed parents have the statutory right to reasonable unpaid time off to care for dependants if the leave is necessary due to an unexpected breakdown of their usual childcare.

This right only applies to employees - irrespective of their length of service, or whether they work full-time or part-time or are employed on a permanent, temporary or fixed-term basis. It does not apply to workers or the self-employed. The amount of time off that the employee can take is limited to the amount of time needed to deal with the ‘crisis’. Employees should give their employers notice of the reason for their absence as soon as they reasonably can and also to let them know how long they expect to be away from work.

Since we have been given notice and fair warning of these upcoming strikes, couldn’t employers argue that it was not ‘unexpected’? Unfortunately not.

In 2006 in the case of the Royal Bank of Scotland Plc (RBS) v Harrison, the Employment Appeal Tribunal (EAT) upheld an employment tribunal decision that an employee was entitled to take time off to care for dependants and suffered a detriment for doing so. The employee was given only two weeks’ notice that her usual child minder would be unavailable.

The EAT confirmed at the time that the word ‘unexpected’ does not involve a time element - it is unexpected at the moment the employee learns of it. In this case, the employee had taken reasonable steps to find alternative care, but had unfortunately failed, so the leave was therefore necessary. Had she not taken reasonable steps, then the employer could have argued that the time off was not necessary and therefore did not fall within the definition.

Working parents should not be penalised (such as by disciplinary action being taken against them for absence) simply for exercising their right. In another similar case in 2011 - in Clarke v Credit Resource Solutions, an employment tribunal found that Mr Clarke was subjected to a detriment when he had one hour’s pay deducted, even though he was only absent for half an hour in order to make emergency childcare arrangements. He was also unfairly dismissed, as this was linked to him exercising his statutory rights.

These cases highlight the need for policies to be implemented carefully, so that decision makers and managers have a clear understanding of them and can then use them effectively and fairly. In the current climate now would be a good time to dust off your dependant leave policies and make sure that all involved are aware of their rights and obligations.

And finally, if so many or all of your employees go on strike and your business cannot function, then what should you do? advises that you can ask non-union employees to cover work during a strike, as long as this is allowed by their employment contracts and you do not discriminate against any employee directly or indirectly. You can also hire workers from a recruitment agency to provide cover during a strike but they must have the right skills, experience or qualifications.

If you would like support from us here at Second Chapter with any of this then please get in touch today to find out more about how we can help.

About Heather McKinlay

Heather works as an HR Business Associate at Second Chapter where she supports mainly with recruitment, general HR administration and also social media postings. She has had a varied career so far spanning across retail, hospitality, marketing and communications, but always with people at the heart of it. Heather lives in Sheffield with her husband, daughter and rescue cat George.

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