The recent decision in the case of EBR Attridge Law (formerly Attridge Law) and another v Coleman has raised some interesting issues in relation to the employment rights of those who care for dependents with a disability.
Before we look at the implications of this decision, it is important to remember that carers already have special rights in the workplace, in particular under the flexible working regulations and the regulations relating to time off for domestic emergencies.
Q On what grounds can an employer turn down a request for an adjustment from the carer of a disabled dependent?
A Under the flexible working regulations, an employer can only turn down a request for flexible working on one of the business-related grounds specified under the regulations. These include reasons such as a detrimental effect on ability to meet customer demand, and a detrimental effect on quality or performance.
Q What is the definition of ‘dependent’ in terms of the relevant regulations?
A An employee may request flexible working arrangements to care for a disabled child under the age of 18, or any person for whom they care who is their spouse, partner or civil partner, their relative, or someone living at the same address. The employee must have been continuously employed for at least 26 weeks to make such a request.
Eligibility under the domestic emergencies legislation is much wider. An employee may take reasonable unpaid time off work to deal with emergency care arrangements for any adult who reasonably relies on the employee to assist him or her if ill or injured, or who relies on the employee to make arrangements to provide care for them. This could include a relative, friend or neighbour.
Under both sets of legislation, the adult in question need not necessarily be disabled within the legal definition.
Q If an employer suspects an employee who asks for adjustments is not telling the truth, what proof may be requested?
A It may be appropriate to request a letter from the dependent’s GP. This should clarify the condition of the dependent, the nature of the relationship with the employee, and the amount of care required.
Q What penalties may an employer face if it turns down a reasonable request?
A If you refuse a request for flexible working, the employee may complain to the employment tribunal that the request has not been dealt with properly, or that it has been rejected based on incorrect facts.
If the tribunal finds that you have unreasonably turned down a request, you may be ordered to reconsider the request and/or pay the employee up to eight weeks’ pay as compensation. If you unreasonably fail to grant time off for a domestic emergency, the tribunal may compensate the employee for any financial losses they have sustained.
Q How much notice must a carer give for time off (for example, in an emergency) and are there any limits on how much time they can take off?
A Under the domestic emergencies legislation, an employee must inform their employer as soon as reasonably possible of the reason for their absence and, where they are able to, to inform the employer in advance of their absence, and how long they expect to be absent for. Any time taken off must be reasonable and in most cases will be limited to the amount of time needed to sort out the immediate emergency.
The recent case of Royal Bank of Scotland v Harrison concerned an employee exercising her right to take time off to care for dependents. She had been given 16 days’ notice by her babysitter that she would not be able to care for her two young children on a particular day. In this time, the employee tried but failed to find alternative care, and therefore informed her employer she required one day’s leave. Although the employer initially said that this would not be a problem, the employee was subsequently informed two days before she was due to take her leave that she could not take time off, and the absence would therefore be unauthorised. However, the employee had no choice but to take leave and received a verbal warning, against which she appealed. The employee subsequently complained to the employment tribunal, which found in her favour.
Q Is an employer obliged to pay a carer who takes time off – other than paid leave – to look after a dependent?
A Any time off work that an employee takes under the domestic emergencies legislation is unpaid.
Q What do employers need to do in light of the Coleman v EBR Attridge Law ruling?
A The effect of the Coleman decision is that protection from disability discrimination is extended to anyone who is treated less favourably in the workplace in connection with another person’s disability – for example, someone they care for. This is known as ‘associative discrimination’.
In the Coleman case, Mrs Coleman was refused flexible working arrangements to care for her disabled son. The European Court of Justice held that, in principle, she had the protection of the disability discrimination legislation because of her son’s disability. The Employment Tribunal in the UK has not yet decided whether she was in fact discriminated against or whether the employer’s actions were justified. Therefore we do not yet know how this decision may be applied in practical terms.
Employees are likely to claim ‘associative discrimination’ in flexible working cases because of the limited compensation that is available under the flexible working legislation. Compensation for discrimination is unlimited, and could encompass any earnings that the employee has lost as a result of having to resign from their job.
However, in most cases, it should be open to employers to justify any less favourable treatment by reference to business requirements. Therefore it is important to deal with any requests from carers of disabled people in a proper manner, and to make sure that you have clear business grounds for any decision you make. It is also advisable to document the reasons for your decision carefully, in case you are subsequently challenged.
Matthew Clayton, partner, Rickerbys
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