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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 74357
Experience:  Qualified Solicitor
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I have two staff members furloughed due to childcare and I

Customer Question

Hi
JA: Hello. How can I help?
Customer: I have two staff members furloughed due to childcare and I need to employ someone else to replace them, they cant tell me when they can return to work as even in September school may not fully reopen
JA: Have you discussed this with your HR staff? Or with a lawyer?
Customer: no , this is why im askign you
JA: Is the relevant person an employee, freelancer, consultant or contractor? Does the person belong to a union?
Customer: emplyee part time and no union
JA: Anything else you want the Lawyer to know before I connect you?
Customer: no
Submitted: 1 year ago.
Category: Law
Expert:  Ben Jones replied 1 year ago.

Hello, I’m Ben, a UK lawyer and will be dealing with your case today. I may also need to ask some questions to determine the legal position.

Customer: replied 1 year ago.
ok
Expert:  Ben Jones replied 1 year ago.

How long have they worked for the business?

Customer: replied 1 year ago.
2 years and 3 years
Customer: replied 1 year ago.
4. Your working hours will be 20 hours per week. The Company may require you to vary the pattern of your working hours if required on a temporary or permanent basis should the needs of the post require this.
Expert:  Ben Jones replied 1 year ago.

Exactly 2 years? What is the actual start date please?

Customer: replied 1 year ago.
this may also be relevant as per their contract - can it be zero hours if needs be ie they work some hours one week but maybe zero while we figure out the school situation
Customer: replied 1 year ago.
over two years
Customer: replied 1 year ago.
16/4/18
Expert:  Ben Jones replied 1 year ago.

Thank you. Leave it with me for now, although please note it is extremely busy at present due to the ongoing situation so there may be a delay in replying, but I will get back to you at some point today. Please do not reply in the meantime. Many thanks

Expert:  Ben Jones replied 1 year ago.

Can I just check also what are you ideally hoping to achieve in the circumstances, please?

Customer: replied 1 year ago.
I need staff to work now so have to replace them but possibly taking on one full time person rather than replace their two part time jobsbut also be able to explain to staff who is responsible ie is it my responsibilty to make them redundant or should they resignif i take someone on full time then technically i have no need for them to work but they are on furlough so do i make them redundant after they come off furlough or should they resign ?
Customer: replied 1 year ago.
but I may also be in a position to offer them some work when the schools return fully so shoudl they just take unpaid leave or does their contract allow me to put them on zero hours or give them some hours when I have the work
Customer: replied 1 year ago.
ideally I want to take someone on full time, then offer them some work if and when i can - however they also cant tell me when they can work until they know what happens with school in september
Expert:  Ben Jones replied 1 year ago.

ok thanks. If you can keep them furloughed for now and just get a temporary cover that would be best. Once the furlough scheme gets wound down and you have to start contributing towards it you can re-visit the situation with them and check if they are in a position to come back to work. You can potentially take them off furlough at any time.

Understandably, the current situation is creating a lot of difficulties for many people across the country as it is unprecedented to have to look after your children at home, whilst not being able to rely on any outside help, whilst also working at the same time.

However, the law has not changed in terms of their options and these remain as follows:

· Dependency leave – this is only for emergencies and they could have likely used it to start with but once it has become apparent that this will be happening on an ongoing basis, it will no longer be classified as an emergency

· Parental leave – they get 4 weeks of unpaid leave per year per child that they can take, although they need to give at least 21 days notice. If the employer cannot accommodate their chosen dates you must offer them an alternative. Even if they take one day off a week it will still count as a whole week off their entitlement

· Holidays – to be applied for in the normal way

· Unpaid leave, if approved by the employer

· As a final resort, they can just take the time off unauthorised but that risks disciplinary action

There is no simple solution unfortunately and it will have to be a case of compromising with them to find the best option that works for you all.

Does this answer your query?

Customer: replied 1 year ago.
they wont be in a positin to come back to work until schools go back full time plus one girl relies on grandparents for childcare so she cant work her full hours even when school returns
Customer: replied 1 year ago.
i asked if i can keep them in their contract even if i dont have any hours for them? ie the contract states they have to work variable hours but can this be zero if need be ?
Customer: replied 1 year ago.
i took someone on temporarily but they left to find a full time permanent job and training is not easy!
Customer: replied 1 year ago.
I know they arent in a position to come back to work once furlough stops. Furlough is great but what if the furlough scheme didnt exist - surely they would have had to resign ?
Expert:  Ben Jones replied 1 year ago.

Depends on what the specific wording about their hours is in the contract – can you quote that please?

Customer: replied 1 year ago.
I did already
Customer: replied 1 year ago.
4. Your working hours will be 20 hours per week. The Company may require you to vary the pattern of your working hours if required on a temporary or permanent basis should the needs of the post require this.
Customer: replied 1 year ago.
in any circumstance after furlough ends if they cant work the hours required should they resign or be made redundant ? that was my original query ideally i would keep them on but who is responsible ? them to resign or me to make redundancyif i take someone on temporarily and they cant return should they resign ?
Expert:  Ben Jones replied 1 year ago.

You can potentially change their hours but really it should not be a zero hours arrangement and you would need to reduce them and stick to it, at least for a period of time. That is unless they consent to having a new contract on a zero hours arrangement

You would not need to make them redundant because this is not a redundancy situation. So you have to tell them that you will keep them employed if needed but cannot pay them if they are not available for work, so it is their choice whether they resign or not

Does this clarify things a bit more for you?

Customer: replied 1 year ago.
if i replaced them with someone else though wouln't that be redundacny ?as per the wording on the contract it states i can vary their hours so why cant i do this and give them variable hours ? or do i have to give them fixed hours ?
Expert:  Ben Jones replied 1 year ago.

No, there has to be a reduced requirement for employees to do a specific job – you still need the same number of employees to do it, there is non reduction in the overall numbers

These types of clauses do not give you the unconditional right to change and chop their hours as and when you want – you still have to act fairly and reasonably so you need to be consistent in your approach when you vary them

Customer: replied 1 year ago.
Sorry I don't understand then if i replace their two part time jobs with one full time person then they just leave ?Its really tricky as they will need a variable hours contract anyway when they can return to work
Expert:  Ben Jones replied 1 year ago.

Oh ok if you are reducing the part time roles and replacing them with full time roles then you can consider redundancy but you must offer them the full time position first as an alternative to see if they would accept it (of course on the basis that they are available for it). If they are not interested or not available then you can consider redundancy instead

Expert:  Ben Jones replied 1 year ago.

My response to your query should be visible on this page. Could you please let me know if it has answered your original question or whether you need me to clarify anything else in relation to it? If your query has been answered I would be grateful if you could please take a second to confirm this by replying on here. Thank you

Expert:  Ben Jones replied 1 year ago.

Hello, I see you have read my response to your query. Could you please let me know if it has answered your original question? You can simply reply on here with a quick ‘Yes, thanks’ and I won’t bother you again. Thank you