Teacher strikes, school closures and the right to time off for dependents

• Blog

It was announced on 16 January 2023, that teachers in England and Wales have voted to strike for seven days in February and March this year in a dispute over pay. The proposed strike days are:

1. 1 February: All schools in England and Wales
2. 14 February: All schools in Wales
3. 28 February: North and north-west England, Yorkshire and Humber
4. 1 March: East Midlands, West Midlands, and the NEU’s eastern region
5. 2 March: South-east and south-west England, and London
6. 15 and 16 March: Two-day strike of all schools in England and Wales

Understandably this announcement has left parents and employers concerned about childcare and absences from work.

Time off for dependents

Section 57A of the Employment Rights Act 1996 (ERA 1996) provides that employees (not workers or those who are self-employed) are entitled to take reasonable unpaid time off for dependents where it is necessary:

1. to provide assistance on an occasion when a dependant falls ill, gives birth or is injured or assaulted,
2. to make arrangements for the provision of care for a dependant who is ill or injured,
3. in consequence of the death of a dependant,
4. because of the unexpected disruption or termination of arrangements for the care of a dependant, or
5. to deal with an incident which involves a child of the employee and which occurs unexpectedly in a period during which an educational establishment which the child attends is responsible for him.

To be entitled to the right to time off for dependents, an employee must:

1. tell their employer the reason for the absence as soon as reasonably practicable; and
2. how long they expect to be away from work unless it is not reasonably practicable to tell the employer of the reason for their absence until they have returned to work.

As the wording for right to time off for dependents stipulates it can be used to deal with “unexpected disruption” some may think that time off for dependents would not be applicable to the planned teacher strikes. In the case of Royal Bank of Scotland plc v Harrison [2009] IRLR 28 EAT however, it was found that in the event that an employee makes every effort to make alternative childcare arrangements, they are entitled to take time off for dependents in accordance with section 57A(1)(d) ERA 1996. In this case, Mrs Harrison was informed on 8 December that her child minder would be unavailable on 22 December. Mrs Harrison took reasonable steps to find alternative care, but failed to do so, meaning she had to take time off for dependents. The Royal Bank of Scotland argued that as Mrs Harrison was informed of the issues two weeks prior to the absence, it was not “unexpected” as required by 57A(1)(d) ERA 1996. The EAT disagreed with this assertion and found that the word “unexpected” does not involve a time element and that an event is unexpected at the moment the employee learns of it.

The statutory entitlement to time off for dependent is that the time off is unpaid, however some employers decide to pay for an employee’s time off for dependents and should check their policies to confirm whether employees should be paid for such time off.

The ERA 1996 provides that employees should not suffer a detriment, such as being subjected to disciplinary action, for exercising their right to time off for dependents. In the event that an employee is put to a detriment because they exerted their right, they could have a successful unfair dismissal claim. 

Alternatives to time off for dependents 

Annual leave

Whilst time off for dependents is available to employees, they may not necessarily wish to choose this option and some employees may be reluctant to do so if it is unpaid. 

An employee, or worker not entitled to time off for dependents, may request to take the day out of their normal annual leave entitlement. Unless a notice requirement is stipulated within the contract of employment, an employer should be given notice that equates to twice the number of days’ leave they want to take. 

Parental leave

Sections 76 to 79 ERA 1996 also provides employees with at least one year of continuous employment, the right to take unpaid parental leave for any reason relating to their child –  meaning it does not have to be urgent or unexpected in nature. 

An employee is entitled to 18 weeks’ unpaid parental leave for each child up to their 18th birthday with a maximum of 4 weeks for each child to be taken per year. Unlike time off for dependents however, unpaid parental leave must be taken in whole working weeks. 

Working parents may decide to request unpaid parental leave instead of time off for dependents for the two day strikes across England and Wales planned for 15 and 16 March. Employers should review their policies in preparation for such requests.

As with time off for dependents, employees should not suffer a detriment for exercising their right to request and take unpaid parental leave and could bring a claim for unfair dismissal should they be subjected to such a detriment. 

Flexible working

Employers are also advised to consider whether to allow employees to use flexible working instead of taking leave such as flexitime, working from home or swapping shifts where requested and available.

If you’re going to be affected by the upcoming strikes and are looking for some guidance on where you stand in being able to take time off for your children, get in contact with Kayleigh Arthurs today by calling 01752 203500 or emailing Kayleigh.Arthurs@GAsolicitors.com.