Childcare headache over the summer holidays? What are your legal rights at work?

Career

Already worrying how you’ll cope with childcare and working over the summer holidays – especially if your carefully made plans go wrong? We explain your legal rights at work.

As schools start their long summer holiday, working parents face the annual childcare headache. For many families this involves juggling a patchwork of arrangements such as holiday clubs, time with grandparents and one, or both, parents taking annual leave to ensure children are looked after while mum and dad can carry on with the 9 to 5.

Inevitably, however, there may be times over the summer months when things don’t run smoothly. So, what are the relevant workplace rights you should be aware of?

Am I entitled to leave if my childcare arrangements fall through?

All employees, regardless of the amount of time they have worked for their employer, whether they are full or part-time and whether they are on a temporary, fixed-term or permanent contract may take a reasonable amount of time off to deal with the unexpected breakdown of arrangements for the care of a dependant.

However, an employer does not have to pay the employee for the time off as the statutory right is only to take the time, not to be paid. (Note that the right only applies if you are working under a contract of employment; it doesn’t cover you if you’re a worker or self-employed.)

The point of allowing employees this time off is to enable them to deal with something unexpected. It doesn’t extend to planned time off, for example to enable you to take your child to a medical appointment.

The right to time off is also not intended to allow you to care for your child yourself on an on-going basis. Instead it’s to deal with the immediate crisis and put in place alternative arrangements.

In the case of Royal Bank of Scotland v Harrison, an employee had two weeks’ notice that her childminder would be unexpectedly unavailable for one day. She tried and failed to find alternative cover during that time.

The Employment Appeal Tribunal rejected the Bank’s argument that the disruption to care had not been unexpected. It ruled that there was no necessary time element, the disruption to care was unexpected at the time the employee learnt of it and she was therefore entitled to the time off.

The right to take unpaid time off is also available where a child falls ill or is injured to enable the parent to make arrangements for the provision of their care (as opposed to actually caring for them themselves on an on-going basis).

How much time off is ‘reasonable’?

The legislation doesn’t specify how much time an employee is entitled to take. Every situation will depend on the particular circumstances of the individual involved and the context.

In some cases it may only be a matter of a few hours needed to organise alternative childcare. It is likely that no more than a couple of days would be considered reasonable in most cases.

What can I do if my employer won’t approve my holiday request?

Many working parents will be in the same boat over the summer holidays and will be seeking to use their annul leave to assist with childcare during that period. This can be difficult for an employer to deal with fairly as it may not be able to approve all requests – particularly in businesses which are busy during the summer time.

While an employer can of course take into account its operational requirements, it also needs to make sure it is achieving this in the least detrimental way for employees. Larger employers will have more latitude than smaller employers and will be expected to do more.

A policy which grants leave on a ‘first come, first served’ basis or through a ballot may not be enough to ensure fairness. Employers should consider who was able to take leave in previous years and who really needs to take leave, for example, a single parent with no family living close by is likely to have few other options.

It goes without saying that employees need to familiarise themselves with their employer’s holiday policy, make sure they observe any time limits for making holiday requests and never book flights etc. before their request has been formally approved by their employer.

What can I do if my holiday request is turned down?

If your request for holiday is turned down and any informal attempt to resolve this with your manager has failed, then it willbe necessary to bring a formal grievance using your employer’s grievance procedure.

If the holiday request is being made in order to enable a woman to care for her children then there is likely to be a good argument that this is indirect sex discrimination, as employment tribunals generally accept that more women than men have childcare responsibilities (yes, even in the 21st Century)!

So a holiday policy which does not allow annual leave, or only allows a few employees to take leave, over the summer holiday period will particularly disadvantage women.

What other options do I have to cover my childcare arrangements over the summer holidays?

Taking unpaid parental leave over the summer could be one option, as employees who are parents of children under the age of 18 can take up to 18 weeks’ unpaid parental leave.

This is a form of statutory leave to allow parents to care for their child and return to the same job afterwards.  But, it is only available to those who have been employed for at least one year. Leave must be taken in blocks of one week (unless the child is disabled, when it can be taken in shorter blocks) and not more than four weeks’ leave per year can be taken in respect of any child.

You must give your employer at least 21 days notice of your intention to take parental leave. However, an employer can postpone your leave for up to six months if they consider that the operation of their business will be unduly disrupted so, this is not a water tight solution.

Another option would be to consider making a formal flexible working request to permanently vary your employment contract. This could involve different hours or days of work during the summer holiday period only, or be a full blown change to term-time working only. Again, however, an employer is entitled to refuse a flexible working request if it has good business reasons for doing so.

Try to agree arrangements informally

In an ideal world, you would be able to agree ad hoc arrangements informally with your employer to help you  cover childcare over the summer holidays. For example, temporarily working from home or making up hours later on in the year.

Sadly, this is rarer in practice than it could be. If you have an inflexible employer, the final option may be to consider self-employment!

Need more legal employment advice?

You’ll find more advice on your rights as an employee in these articles:

Katy Meves is a Partner at Springhouse Solicitors, a niche employment law firm.

Photo by Jon Flobrant