How do we deal with childcare issues?
The safest approach is to manage these situations through risk – having childcare difficulties is a reality for many working parents as childcare facilities struggle to cope with the current measures and reduced operating capacity in place. In situations where childcare is posing an issue to returning to work, we recommend keeping the employee on furlough for as long as possible.
If the primary carer is a female, forcing her to return could constitute indirect sex discrimination (women are more like than men to care for children, so it’s harder for her to return). If you have a legitimate business interest for requiring her back and there was no alternative but to require her to return, a tribunal might think the request was a reasonable one and that you acted proportionately. There are as yet, no test cases of this type in the employment tribunals.
If you haven’t already, you may look to reduce furlough to the minimum level possible (80%) for employees in this situation. They could also use unpaid parental leave, which is a statutory right, and is capped at 4 weeks per year to a maximum of 18 weeks before the child turns 18. You could also allow some annual leave or unpaid leave to be taken. It is advisable to keep reviewing the situation and ensuring the employee feels able to return at the right time.
Can I make a pregnant part-timer redundant?
A dismissal will automatically be unfair (from day one of employment) if the only motive for dismissing is because of the pregnancy. You must show there is a genuine redundancy situation and follow a fair procedure by treating everyone equally who performs that role.
The risks in doing this are indirect discrimination (as women are less likely to be able to take on full-time work than men because of caring responsibilities). Part-time workers cannot be treated any less favourably because they are part-time workers, again, there has to be a genuine redundancy situation with a legitimate business aim. You should explore all the alternatives before progressing down this route, and be able to prove there was no alternative to your proposal.
Consultation is important with the affected employees – entering into genuine discussions about how the aim can be achieved through other methods (where possible).