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Welcome Clarification from the Government that Employees with Childcare Issues can be Furloughed

13th January 2021

At the beginning of last week many parents found themselves back in the position that they were in during the first national lockdown in March 2020. The government’s decision to close all schools during this third national lockdown came into effect on 5 January 2021, with many children attending primary school for just one day. Whilst Prime Minister, Boris Johnson, has promised that schools will be the first to reopen when the lockdown is lifted and may be able to reopen on 22 February 2021 after half-term, he has also confirmed that lockdown and the re-opening of schools could be delayed beyond this date.

Many employers may have been wondering whether employees that are unable to work due to increased childcare commitments could be placed on furlough.

HMRC has recently updated its guidance to state that employers can furlough employees if they are unable to work, including from home, or are having to work reduced hours because they have caring responsibilities resulting from COVID-19 such as caring for children who are at home as a result of school and childcare facilities closing.

The guidance says that employees can be furloughed in these circumstances, but there is no obligation on the employer to place the employee on furlough. Instead, the employer may consider a more flexible working arrangement, perhaps by allowing for earlier start/finish times and working outside of usual office hours.

Employers should speak to employees and encourage them to raise concerns about balancing work and childcare commitments. They should be careful not to make assumptions about who in the family will take primary responsibility for childcare. Many parents share childcare responsibilities and only approaching women to discuss the impact of childcare during lockdown on work commitments would amount to sex discrimination. Similarly, offering furlough arrangements to women with childcare issues and not men, would also amount to sex discrimination.

For employers with staff currently on furlough or those considering furloughing employees during this third national lockdown, the guidance can be found here.

Choy Lau is a Senior Associate and Michelle Chance is an Employment Partner at City Law Firm Rosenblatt Limited.