COVID-19: Balancing Childcare and Working from Home

A recent report from the Institute for Fiscal Studies and the UCL Institute of Education[1] found that working mothers have been able to do one hour of uninterrupted paid work for every three hours done by men during the pandemic lockdown. This seems to be on the assumption that mothers typically perform a larger share of childcare than fathers. Whilst many fathers are now at home all day with more exposure to the scale and scope of childcare and housework, if households continue to divide up domestic responsibilities as they did before, it seems mothers will take on a greater share of the new responsibilities and will see a bigger absolute increase in the time they spend on childcare.

The report also found that mothers were 23% more likely than fathers to have temporarily or permanently lost their jobs during the coronavirus crisis, 47% more likely to have permanently lost their job or resigned and 14% more likely to have been placed on furlough leave.

Where mothers and fathers have both remained in paid jobs, mothers have seen a bigger proportional reduction in their hours of work than fathers. Among those doing paid work at home, mothers are more likely than fathers to be simultaneously trying to care for their children during their working hours.

In conclusion, the report found that mothers were now 9% less likely to still be in paid work than fathers.

What are the implications of more women finding themselves out of a job? Well, in addition to the impact this will have and continue to have on the economy in general, it could also result in a further increase in the gender pay gap.

Do these statistics suggest that employers may be penalising mothers more when it comes to working and providing childcare during the pandemic and, if so, is this unfair or potentially discriminatory in nature?

For many businesses the pandemic and ensuing lockdown has resulted in a significant downturn in work and some businesses in hospitality and leisure have had to close altogether, either temporarily or in some cases permanently. This has meant that those employers have had no option but to either furlough staff or make them redundant as few can continue to pay staff without generating any income.

However, for the businesses that remain open and operational and where their employees can work from home, whilst the employers have the same options with regard to staff of furlough leave and redundancy, many are continuing to pay employees as normal or subject to reduced hours to the extent that they can afford to do so. But what does it mean for those with children also at home if they cannot work as normal during their normal working hours?

The starting point is that an employer has the right to expect that when an employee is working they are devoting their attention to working. However, these are exceptional circumstances and, as we have previously suggested, employers should exercise common sense and flexibility towards such situations in an effort to assist and accommodate employees in their childcare responsibilities. This can include allowing employees to reduce or vary their working hours or patterns either informally by agreement or formally by way of a flexible working request.

Whilst employers are not obliged to grant a flexible working request, they should exercise caution when deciding to refuse one in these times and the business case they give for this. If this is not dealt with properly, there is a risk that the employee could argue that such a refusal constitutes either a breach of the implied term of mutual trust and confidence and hence a breach of their employment contract but, also, if that employee is a woman, that it amounts to sex discrimination.

A blanket ban of home working for single parents with young children impacts more women than men because women tend to have more childcare responsibilities. Employers must therefore be careful not to treat female employees differently to male employees whilst also ensuring not to treat employees who are parents differently to employees who are not.

Although employers could treat a lack of productivity as a performance issue and possibly commence disciplinary proceedings as a result, this would seem to be unduly heavy handed and a risky approach in view of the above.

Other options available to employers when trying to accommodate childcare needs during this period include speaking to employees about taking annual leave, unpaid dependent leave and parental leave. However, as above, forcing a mother to take unpaid leave as a result of childcare responsibilities could potentially amount to indirect discrimination so employers need to be careful about this. Instead we would recommend that both parties adopt a common sense approach to try and reach an agreed solution rather than employers making unilateral decisions in this regard.

For advice and consultation on how to tackle employee and employer issues throughout the coronavirus pandemic, please contact our employment team via email at elizabeth.johnson@dwfmbeckman.com or louise.rogers@dwfmbeckman.com or by telephone on 020 7408 8888.

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will depend upon the specific circumstances and facts and you are therefore advised to seek comprehensive advice.

[1] https://www.ifs.org.uk/uploads/BN290-Mothers-and-fathers-balancing-work-and-life-under-lockdown.pdf