Fixer: Employee is still on reduced hours because of childcare issues

Will we be at risk of an unfair dismissal claim if we encourage her to leave?

During the first lockdown, we made arrangements with a member of staff who was struggling with childcare while the schools were closed to temporarily reduce her hours. She is normally contracted to work 40 hours per week. However, that was months ago and she’s still unable to fulfil her full-time hours because of problems with childcare. It was originally a gesture of goodwill, but I feel she ought to have put alternative arrangements in place by now, and we need her role to be full time. Will we be at risk of an unfair dismissal claim if we encourage her to leave?

In short, yes – you will be at risk of an unfair constructive dismissal claim if you encourage her to leave. But she’s not the only person who is struggling with childcare, and it is not surprising she has been unable to resolve the problem. Many people rely on family carers such as grandparents but, at the start of the pandemic, many were classed as clinically vulnerable and were unable to continue with those arrangements because they were shielding. Many formal childcare arrangements evaporated when the schools closed so, if the employee could not work from home, it would be difficult to find alternatives.

There are now limited options for childcare but, with the schools closed again until at least February half term, you are asking for something that is unachievable for many parents. One change from the first lockdown is that as well as being able to use annual leave or unpaid parental leave to deal with childcare issues, employers can use the furlough scheme for employees who are unable to work because of caring responsibilities arising from Covid. It’s your decision, but it would fund some of her time while allowing you to find temporary cover for the hours she cannot do. Ultimately she may wish to submit a flexible working request to make the arrangement permanent and you can then look at job share options to cover the role.