Three million people in the UK combine work with care. An ageing population means that this figure will rise significantly. One adult in five has seen caring duties have an impact on their work, especially those aged 45 to 64.
Productivity, attendance and stress levels can suffer when employees are juggling the demands of work and care. During Carers Week (9-15 June 2014), employers should consider looking at how they manage this against the competing needs of other employees and the business.
1. How to define a carer?
Your employee is a carer if they look after a child, relative, partner or friend who needs help because of their age, illness or disability. Many carers do not identify themselves as such; they are “just” family or the partner. The term “carer” is, however, important in a legal context as it affords employees certain rights and protections at work.
2. Do employees have to tell you they are a carer?
Carers have the same rights as other employees to privacy and confidentiality. They do not have to inform you about their caring obligations. They may be reluctant to tell anyone for fear of being stigmatised or stereotyped. Much will depend upon their role, but they should at least inform HR and their line manager. Employers owe a duty of trust and confidence to employees. You need to create a safe environment to encourage employees to be open with you, so that you can support and manage their work arrangements. Key to this is ensuring that you have appropriate controls in place under the Data Protection Act 1998 to keep their personal information secure and not process it without their consent.
3. Do carers have the right to time off work?
Currently there is no legal right to “carer’s leave”. Many employees resort to using their holiday or take sick leave if the stresses of working and caring affects their own health. To avoid this situation some employers do provide paid/unpaid leave and/or career breaks or sabbaticals for the long term. Paid carers leave is very much on the campaign agenda for carer charities.
If the employee cares for a child then they may be entitled to parental leave. Employees with one year’s continuous service can claim 18 weeks’ unpaid leave up to the child’s fifth birthday or 18th birthday if the child is disabled. From 2015 this extends to all children up to 18. The Trade Union Congress is also campaigning for “grandparents’ leave” on similar terms.
4. What about emergency leave?
Employees have the right to unpaid time off for families and dependants. They can request reasonable time off to deal with an emergency involving a dependant. It has to be a genuine emergency to “arrange” and not to “provide” care. A “dependant” is a partner, relative or someone dependant on the employee. Some employers offer paid compassionate leave in these circumstances.
5. Do carers have the right to work flexibly?
From 30 June 2014, all employees with 26 weeks’ continuous employment will be able to request flexible working. This will, however, remain a right to request only. Employers can reject the request for sound business reasons. Currently, to qualify, employees must also be a parent with a child under 17, a disabled child under 18, or a carer for a partner, relative, adult who lives with them. Flexible working covers flexible starting/finishing, part-time and compressed hours, term-time and home working or job sharing.
6. Can I performance manage or discipline a carer?
Carers are not exempt from being performance managed or disciplined. However, you have a duty to support employees in meeting performance levels. If you pile on the work, or view carers in a stereotypical way as to their motivation or commitment, or you take disciplinary action without making allowances for the employee’s caring obligations, then you could be at risk of a grievance and ultimately a constructive or unfair dismissal, discrimination or even a stress-related claim. Employees must ordinarily have two years’ continuous employment (as of April 2012) to bring a claim for unfair dismissal, but no qualifying service is required to bring a discrimination claim or a stress claim.
7. What about carers and redundancy?
Carers do not enjoy special protection from redundancy. An employee cannot, however, be selected for redundancy because they are a carer. There must be a genuine redundancy, a proper process followed and objective selection criteria applied where a pool of employees is being considered. If an employee is selected because of a dip in their attendance or productivity due to caring obligations they could have a potential claim for unfair dismissal or discrimination.
8. Are carers protected from discrimination?
Being a carer is not a protected characteristic under the Equality Act 2010. However, a protected characteristic such as sex could afford protection. For example, a single mother works part time because of childcare and is selected for redundancy because she is a part-time employee. This could be indirect sex discrimination.
Even if a carer does not have this protection, they are protected from direct discrimination and/or harassment if they are treated less favourably because of their association with someone who has a protected characteristic. A recent example is the case of Price v Action-Tec Services Ltd where an employer told the employee “if I had known about your husband’s illness I wouldn’t have taken you on”. Her subsequent dismissal was found to have been discriminatory because of her husband’s disability, cancer.
Harassment could arise where a carer is subjected to inappropriate emails or cold-shouldered. Carers might also be protected from victimisation where an employer subjects the carer to a detriment because of a “protected act” such as raising a grievance alleging discriminatory treatment. There is, however, no duty for employers to make reasonable adjustments for carers of a disabled person.
9. What about health and safety?
Employers must provide a safe system of work. In addition to Health and Safety legislative requirements, you have a duty under the employee’s employment contract to exercise reasonable care to prevent personal injury, which extends to preventing stress or bullying at work.
10. What can I do to protect employees and my business?:
- “Care proof” your policies and procedures. Consider putting in place a carer’s policy or adapt your equal opportunities policy to expressly cover carers.
- Make this part of your equality training, particularly for line managers.
- Consider paid/unpaid leave to cover intensive periods of care or career breaks or sabbaticals as an alternative to the carer using up holiday, taking sick leave or having to give up work.
- Monitor work levels and carry out a risk assessment where appropriate.
- Consider whether an employee assistance programme, counselling or occupational health support can be offered to help the employee balance work and care.