Millions of people across the UK routinely provide unpaid care by looking after an ill, frail or disabled family member or friend. In addition to their caring responsibilities, many of these individuals are also in regular employment.
Staff who fall into the category of carer are increasingly benefiting from workplace protections. In April 2007, carers had extended to them the statutory right to request flexible working. Now, the groundbreaking case of Coleman v Attridge Law, being considered by the European Court of Justice, may mean that carers of disabled and elderly people gain protection from workplace discrimination associated with their caring responsibilities.
Q Under the flexible working regime, who qualifies as a carer and what proof of caring responsibilities is required?
A Employees with 26 weeks’ service who care for a spouse, partner, civil partner or near relative can request flexible working. A near relative is a mother, father, adopter, guardian, son, daughter, brother, sister, uncle, aunt or grandparent of the employee. In-laws, half-blood relatives and step-relatives are covered, as are adoptive relationships and staff who care for an adult living at their home address. In terms of proof of caring, the person concerned must be in need of care, but the employee need not actually demonstrate that any particular level of care is required.
Q How should employers handle flexible working requests from carers?
A A flexible working request must be in writing, must state that it is an application under the statutory procedure, must confirm that the employee is, or expects to be, caring for an adult, and must detail the nature of their relationship with that adult. It must also describe the flexible working pattern applied for, including the proposed start date. The application must also explain what impact the employee believes the new working pattern will have on the employer and how this could be dealt with.
The employer must consider the request and should meet the employee to discuss it. The business does not have to grant the request provided that it can give one of the statutory reasons for refusing – for example, where it is unable to reorganise work among existing staff. The employee has the right to appeal the decision.
Q What are the issues to be aware of in managing flexible working requests and how should competing requests be dealt with?
A According to statistics, about 90% of flexible working requests have been granted by employers and, as a result, there is little case law interpreting the legislation. However, this may be a red herring. The real issues arising out of flexible working requests are allegations of discrimination, rather than breaches of the flexible working legislation itself.
Employers must weigh up competing requests for flexible working arrangements carefully, particularly as the new right for carers has introduced requests from a demographic of employees who did not previously qualify to request varied work patterns.
Employers must give requests from both men and women equal consideration where the effect of granting the request would have a similar impact on the business. Refusing a request from a male employee, but allowing a woman to work flexibly, could result in claims of sex discrimination.
There could also be the risk of age discrimination claims if a carer’s request is refused. Employees taking advantage of flexible working rights tend to be relatively young, being mainly parents of small children. Carers, on the other hand, may well be older.
If, as expected, the outcome of Coleman v Attridge Law is that some carers gain protection from workplace discrimination by virtue of their association with a disabled or elderly person, this could result in employers being under more onerous obligations to agree to, for example, part-time working where caring responsibilities make full-time work difficult.
Where employees are granted flexible working arrangements, employers must ensure staff are not treated less favourably as a result, otherwise they risk claims under the legislation protecting part-time workers.
Q Do carers have other workplace protections?
A As well as the right to request flexible working, the other existing significant right for carers is the right to unpaid time off work to deal with an emergency involving a dependant. This right does not allow for time off to provide long-term care. However, it gives an employee a reasonable amount of time off to make any arrangements needed to deal with an emergency, for example where a dependant’s day carer unexpectedly fails to turn up.
Louise Hendry, associate, DLA Piper