Can’t Work Due to No Childcare – Your Rights in UK Law

Working parents face a constant juggling act between home and family. If you have a sick child, or your child care provider is unavailable it leaves you unable to meet your obligations to your employer. If you can’t work due to no childcare, you might fear the consequences.

There are several legal protections extended to parents who need to take time off for family emergencies. You may hear this being referred to as dependents leave, and working parents have the right to a reasonable amount of this leave without being disciplined or disadvantaged at work.

Let’s take a look at the legal rights and protections available under UK law.

No Childcare – Working Parents’ Rights

For the majority of working parents, balancing their job and childcare is an ongoing battle. Even the most reliable of providers cannot offer childcare 365 days a year. Plus kids get sick, or you might be asked to work during hours when no childcare is available to you.

It is important to note the statutory requirements when it comes to being a working parent. There are laws in place which protect workers who are also parents or carers. Most employers are understanding of the fine juggling act childcare and work creates.

However, it is still essential to understand your legal position should you be unable to work due to childcare issues.

Dependents Leave

When you find yourself with no childcare at short notice, you may wish to consider taking dependents’ leave. This leave is a statutory right when there is an emergency or issue within the family.

Section 57A of the Employment Rights Act, 1996 (ERA) sets out the right to time off for certain scenarios. Finding yourself with no childcare at the last minute falls into the criteria for dependents leave.

The reason for being off work should be unforseen. Knowing an issue was going to happen on a particular day means you had time to come up with alternative arrangements, meaning you don’t qualify for dependents leave.

Employers do not have to pay their staff for any days taken off for dependents’ leave. Some employers may offer paid dependents leave, but this is at your employers discretion.

There are no set limits to how much time an employee can take off for dependents leave. The ERA simply states it must be “reasonable”. Your employer cannot refuse you this time off and making use of the leave it should not form the basis of any disciplinary action against you.

Parental Leave

You may wish to explore the option of using parental leave when childcare issues arise. This is only allocated if certain criteria are met, so it is important to understand the rules.

Parental leave can be awarded if an employee has been with the employer for at least one year. When an employee qualifies for parental leave, they have the right to 18 weeks per child up until the child reaches 18 years old.

The Maternity and Parental Leave criteria are set out under the Employment Relations Act, 1999 (SI 1999/3312). It is also used in conjunction with the Employment Relations Act, 1999 Schedule 4. To receive paternal leave, the worker must be legally classed as an employee under UK law.

The employee must be able to prove parental responsibility to qualify for parental leave. An employer has the right to ask to see the child’s birth or adoption certificate. This leave should not be used on individual days unless the employer agrees to this. It is usually taken in blocks of weeks with a maximum of 4 weeks at a time.

This may not be a viable option in the case of an emergency childcare problem as notice is usually needed by the employer. This notice is 21 days and should include the start and finish dates of the leave. Employers cannot refuse parental leave but they can postpone it if they can prove it will have an adverse effect on the business.

Requesting Flexible Working

Workers always have the option of requesting flexible working. However, this can take time to request and implement so will not be a viable option in an emergency.

To be eligible for making such a request, employees should have 26 continuous weeks of employment with the current workplace. You can try requesting this before the 26 weeks – this is considered an informal request. Employers do not have to consider such informal requests though.

Flexible working is part of the Employment Rights Act of 1996 (Part V111A). There are talks among The Department for Business, Energy and Industrial Strategy (BEIS) to change the current legislation. They wish to make it possible for employees to make flexible working requests from day one. This is hoped to ease the stresses of work hours and better maintain a healthier work and life balance.

Where possible, employers should try and accommodate your flexible working request. Especially if it is related to childcare because employees could explore the route of sex discrimination otherwise. This is covered under the Equality Act of 2010.

Employers can choose to dismiss staff who are unable to meet the requirements of the job. They can also do so for repeated absences, whatever the reason. Often though, it is in everyone’s best interests to meet such requests.

See Also: Flexible Working Request Refused.

Do Employers Have to Accommodate Childcare?

Should you need to change your hours to work better around childcare, it is important to understand your rights. Employees have no automatic right to flexible working hours and there is a process to follow.

Since the pandemic, many employers have become more flexible, allowing for a multitude of working scenarios. Having said this, they can look at your request and decide they cannot allow it at this time. This must be backed up with legitimate reasons. They cannot discriminate against you while considering the request.

As long as you have been with the employer for 26 weeks you can apply. This includes any time you have already had off, such as parental leave. If your employer is not very forthcoming with your predicament, you can try and negotiate.

Your boss may decide they cannot accommodate your flexible working request at this time. They need sound reason though. You have the option to accept the situation and try to find a childcare solution or perhaps look elsewhere for work. You could also go down the working under protest route, but this can be complicated.

Can I Be Sacked For Having No Childcare?

As a working parent suddenly faced with childcare issues, you should know that you cannot be sacked initially. Such situations pop up and must be dealt with fairly and legally by the employer. If the issue recurs over and over then disciplinary action may be necessary.

If you feel you are being treated unfairly in the workplace, you can raise a grievance. Should you be threatened or issued notice for your dismissal, you may be able to claim unfair dismissal.

Working Parents Rights in the UK

There are laws in place to protect working parents and make allowances for childcare issues.

You should bear the following in mind if you are being treated unfairly in this situation:

  • You can take unlimited dependency leave as long as you have a legit reason for doing so. You should also be communicative with your boss throughout this time.
  • You cannot be sacked for taking time off for childcare issues in the short term. Neither should you be treated unfairly in other ways, such as being made redundant or being denied a promotion for this reason.
  • You cannot be refused dependency leave when it is for a good and genuine reason.
  • Often a good and honest conversation with the boss can help the situation from escalating. They might be able to find a compromise that suits all parties.
  • You should also use the online benefits calculator to see what help you are entitled to. Schemes such as childcare funded sessions are in place to support working families.
  • It is best not to worsen the situation by simply not turning up for work. This won’t help the situation. If you cannot physically get in due to the childcare situation then ring and tell your boss this.
  • If you do feel you have been unfairly treated then you can pursue a few options. You can raise the matter informally, or formally or take it to an employment tribunal.

What to Do if You’re Disciplined or Dismissed

The unthinkable has happened and your boss has disciplined you, or even worse, dismissed you due to childcare related reasons. Firstly, you should be aware that there are laws in place to protect workers who are also parents.

An employer has the right to take action on an employee who is constantly absent. However, when you throw childcare related reasons into the mix, it becomes problematic. Employers cannot be seen as discriminating against an employee who is a parent. This can lead to penalties for the employer and possible compensation for the worker.

You should always try and broach this dilemma with an informal chat if possible. Two people sat together discussing the issues and each other’s perspective is heard. If this fails, you can put together a formal grievance. This involves writing it up and handing it to the relevant people. Should this fail, you can pursue a legal case through the employment tribunal.

This claim to a tribunal should be done within 3 months of the refusal by your employer. During this time, you can still try ans solve the issues amicably.

You should contact ACAS who will help you with the process of Early Conciliation.

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