Employers should plan forward to deal with staff shortages due to parent employees not being able to work due to strike action. Employers have a duty to correctly assess dependent leave requests. Employers must review their policy and take advice on forward planning for strike action.
A strike can only be called if a majority of union members agree to it by voting in an agreed-upon ballot. The vote is conducted by postal ballot, with members returning their votes on paper in a prepaid envelope. If the workers agree by ballot to strike, the union must give the employer details about the strike at least 14 days before the strike action begins. Some unions and employers can agree to 7 days’ notice, so employers are advised to make themselves aware of any relevant agreements. If the rules are not followed, the employer can apply to the court to prevent the strike action. With more strike action being announced in various sectors, employers should be aware of how to handle the protests. The first strike day for teachers in England is 1st February 2023, with further dates planned for 15 and 16 March. Working families may be impacted as schoolteachers take to the picket lines. Employers should have policies and procedures to address unforeseen absences.
Section 57A(1)(d) of the Employment Rights Act 1996 provides parent employees with the statutory right to take unpaid time off work to deal with the unexpected disruptions and breakdowns in childcare arrangements. It is questionable whether this right will extend to school strikes because those parents will be given advance notice of the strike.
The case of Royal Bank of Scotland plc v Harrison, UKEAT/0093/08, provides some guidance on dependant's leave. In that case, the Employment Appeals Tribunal had to give consideration to the situation where an employee was given two weeks' advance notice by a childminder. Could the employee depend on the right to dependants' leave for the day the childminder was not available?
The Employment Appeals Tribunal determined that the right is not only available to employees in situations that happen suddenly. It applies in situations where the event was unanticipated, and the employee just learned about it.
Employers should carefully consider each case on its own merits. Where possible, employees can be reasonably expected to make alternative arrangements. Employers must find the essential balance between the needs of the business and the employee’s childcare needs.
As strike dates are announced in advance, employers should speak to their employees about the possibility of childcare issues and how the company will manage with less staff available for work.
Employers should have a dependants' leave policy in place that clearly states the employee's payment policy. Where possible, the employee can be offered annual leave to ensure their loss of earnings is minimised. The policy should make clear how the employer should be notified about the absence. The policy can state that if the employee abuses dependents and leaves, the employer can investigate the absence and consider disciplinary action. Employers should adopt a supportive approach to ensure good working relations. Employees can be offered home working where possible to assist with childcare arrangements.
Employers should be aware that the government is planning a change to the law on strikes. The Strikes (Minimum Service Levels) Bill received its first reading on January 11, 2023. If the bill is passed, it will make significant amendments to the Trade Union and Labour Relations (Consolidation) Act 1992. It will empower the government to pass regulations requiring minimum service levels for key sectors in the event of a strike. The bill will apply to transportation, education, health, fire and security, the nuclear industry, and border security. The legislation will not affect current strikes, as the government says it will take an estimated six months to be passe This article is for informational purposes only and does not constitute legal advice. Should you have an HR inquiry, please contact the Quest HR advice line for specific guidance on your workplace issues.
