As thousands of teachers and train drivers walk out in planned protest, there appears to be confusion around the rules regarding absence and pay if employees are not able to get into work on a strike day.
Pam Loch, Employment Law Solicitor and Managing Director of Loch Associates Group, explains that, with a further wave of strikes to continue throughout March and ongoing disputes over pay and conditions, questions are arising around what rights employees are entitled to if regular working arrangements are impacted.
Emergency dependence leave
Some employees may believe they are entitled to emergency dependents’ leave for childcare, as millions of working parents face disrupted schedules due to teacher and train strikes.
However, it’s important that employees understand the conditions in which this applies – and that they could fall foul of their employers if not managed correctly.
“The key is in the word ‘emergency’, because if you know that the teachers are going to be striking, you’ve had enough notice to be organised and arrange to have someone else look after the children,” said Pam Loch, who has been an employment lawyer for 23 years.
“If you’ve already taken the necessary steps to arrange a childminder, but the person you’ve contacted falls unwell the day before, then obviously you would be able to request emergency dependents’ leave in this case. However, it’s emergency time off, so it will usually be unpaid,” she adds.
If you cannot find someone to look after your children then most employers will expect employees to take unpaid time off or use their annual leave if they are not able to work that day.
Can employees face dismissal if they cannot get to work due to strikes?
Pam warns that unauthorised time off and absences can lead to disciplinary action.
“If you don’t turn up for work, then it’s an unauthorised absence, which can lead to disciplinary action. Employees must contact their employer at the earliest stage possible to notify their absence otherwise they may be reprimanded, as they would at any other time.”
However, this is something that an employer must decide for themselves, stresses Pam. For example, if someone approaches their manager and explains that their childcare arrangements have fallen through at the last minute, it would be difficult not to agree to them having time off. An employer also has to consider if the employee could bring an employment tribunal claim for sex discrimination potentially if they discipline the employee.
Misuse of unplanned absence can break the bond of trust
Employees should only rely on emergency dependents’ leave in genuine cases, as misuse of leave arrangements can damage the duty of trust and confidence between the employee and the employer.
Employers need to be consistent in how they approach all absences but especially emergency time off. Pam says “employees also need to ensure they don’t abuse the trust placed in them by their employer and misuse emergency time off rights when they had advance knowledge they needed the time off.”
Hybrid working is not always the answer
Opting to work from home is not always a simple solution or indeed possible way to deal with childcare issues.
Some employees may think that they can work remotely as they were able to during the Covid pandemic and look after their children. However, they will be working from home with children – which raises certain health and safety issues.
“In any business, the employer must be happy and is legally obliged to make sure an employee is working in a healthy and safe environment; if there are young children running around, their attention will be split between work and home responsibilities. This isn’t healthy or safe for the employee, or for the children either.”
However, if an employee can work from home and does not have children, employers must decide how they approach this as they need to be consistent in their approach and not unlawfully discriminate.
“It is advisable to implement a policy which addresses how remote working and staff rotas are arranged during strike action disruptions – much like employers had to do during lockdown.”
Employers must find creative and cost-effective ways to manage staff disruptions
Businesses will want to be able to continue with business as usual and ensure their customers are satisfied. If a company relies heavily on on-site workers – such as a manufacturer – and it knows that strike action will have an impact on their business, they will have to consider finding creative solutions to keep their business operating.
“To help reduce absences during strike action, organising travel to work for staff who are unable to find transport could be a cost-effective alternative,” Pam said.
“If staff are unable to travel into work, employers should engage with their staff and find out what they can and can’t do to get to work and identify alternative forms of travel e.g. car sharing.
“In some instances, it might be cheaper to arrange transport for the employees that are unable to reach their place of work by their usual means,” said Pam.
Amelia Brand is the Editor for HRreview, and host of the HR in Review podcast series. With a Master’s degree in Legal and Political Theory, her particular interests within HR include employment law, DE&I, and wellbeing within the workplace. Prior to working with HRreview, Amelia was Sub-Editor of a magazine, and Editor of the Environmental Justice Project at University College London, writing and overseeing articles into UCL’s weekly newsletter. Her previous academic work has focused on philosophy, politics and law, with a special focus on how artificial intelligence will feature in the future.
