Weekly dilemma: caring for a non-family member

One of our employees cares for an elderly neighbour. She is frequently late for work in the morning and after lunch, and occasionally accompanies her neighbour on medical appointments, making up the time by working late. We want to be supportive but feel that social services should be responsible for the neighbour’s care.

Your employee’s approach to her working hours is undoubtedly frustrating. Disciplinary action for unauthorised absence or persistent lateness is a possibility, but you must tread carefully and consider the implications for your working relationship.

It does not appear your employee can take advantage of the right to request flexible working, which is now available to the carers of adults. Requests can be made by employees who care for their spouse, partner or a relative. If the person being cared for is not a relative, they must live at the same address as the care provider before a request can be made.

It is unclear whether the elderly neighbour is disabled. If she is, a case currently going through the European Court – Coleman v Attridge Law – could have significant implications. Ms Coleman is claiming her employer discriminated because of her son’s disability. As UK law stands, she cannot claim discrimination by association. However, EU law does not specify that complaints over treatment must relate to the employee’s own disability. Coleman has argued that UK law is defective, and the Advocate General has agreed.

The case now goes to the European Court for a final decision. But, given the possible outcome that discrimination by association will be outlawed, you should take care how you treat your employee in this situation. Depending upon the outcome of the Coleman case, you may be under a legal duty to make reasonable adjustments in her working arrangements to accommodate her neighbour’s situation.

A practical solution could be to explore whether a permanent change to her working hours, thus providing a later start time, would suit both of you. Coupled with a quiet word about the difficulties her absence and lateness cause, this could provide a workable solution, nipping matters in the bud and avoiding the inevitable risks associated with formal disciplinary action.

Roger Tynan, partner in the employment, pensions and benefits team at Maclay Murray & Spens

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