Karen Macpherson, partner, Employment, Pensions and Benefits Group at DLA Piper UK, explains the new guidelines for flexible working for carers and what it means for both employees and employers.
Since 6 April 2007, a further 2.8 million employees now have a right to request flexible working arrangements as ‘carers’ of adults. They will join the 3.6 million employees who are already entitled to request flexible working as parents of children under the age of six (18, if disabled).
Who will qualify as a ‘carer’?
Employees with 26 weeks’ service who care, or expect to be caring, for a spouse, partner, civil partner or near relative will be able to make a request for flexible working. A near relative is someone who is the mother, father, adopter, guardian, son, daughter, brother, sister, uncle, aunt or grandparent of the employee. In-laws, half-blood relatives and step-relatives are also covered, as are adoptive relationships. In addition, employees who care for an adult living at their home address will also have the right to make a request.
What proof of caring responsibilities will have to be shown?
The adult concerned must be in need of care but the employee is not actually required to demonstrate that any particular level of care is needed. The DTI suggests that the care-giving activities might include such things as help with personal care, help with mobility, giving medicines, escorting to medical appointments and undertaking household tasks.
What procedures will have to be followed to deal with a flexible working request from a ‘carer’?
The procedure for making a request for flexible working is the same as the procedure which already applies to parents of children under the age of six. The application must be in writing, it must state that it is an application for flexible working under the statutory procedure, and it must confirm that the employee has been or expects to be caring for an adult and the nature of the employee’s relationship with that adult.
It must also give details of the flexible working pattern the employee is applying for, including the date from which the employee wants it to start. The application must explain what effect the employee believes the new working pattern would have on the employer, and how any such effect might be dealt with.
The employer is under a duty to consider the request and must normally hold a meeting with the employee to discuss it. The employer does not have to grant the request provided that it can give one of the statutory reasons for its refusal, for example there would be an inability to reorganise work among existing staff. The decision must be communicated in writing and the employee has the right to appeal the decision made.
Only one application can be made every 12 months and any request that is accepted by the employer will result in a permanent change to the employee’s terms and conditions.
What are the issues to be aware of in managing a flexible working request? How should competing requests be dealt with?
In the past, it is estimated that about 90 per cent of flexible working requests have been granted by employers and, as a result of this, there has been little case law interpreting the legislation. This may well be a red herring, however. The real issues arising out of flexible working requests are likely to be allegations of discrimination, rather than a breach of the flexible working legislation itself.
Employers will have to weigh up competing requests for flexible working arrangements carefully, particularly as the extension of the right to carers is likely to result in requests from a new demographic of employees who will not have qualified for the right in the past.
Employers will also have to ensure that they give requests from both men and women equal consideration where the effect of granting the request would result in a similar impact to the business. Refusing a request from a male employee but allowing a female to work flexibly could result in claims of sex discrimination.
There may be a possibility of age discrimination claims if a carer’s request is refused. Employees currently taking advantage of the right to request flexible working tend to be relatively young, being mainly parents of small children. Carers, on the other hand, may well fall into an older age range.
Where employees are granted flexible working arrangements, employers need to ensure that they are not treated less favourably as a result, otherwise they risk claims under the Part Time Workers (Prevention of Less Favourable Treatment) Regulations.
Where does that leave employees without children under six or those without adult caring responsibilities?
Employees without children or adult caring responsibilities have no legal right to request flexible working arrangements. Further, employees with children over the age of six do not have the statutory right to request flexible working arrangements (unless the child is disabled).
However, it is not just employees with young children or employees with caring responsibilities who could wish to work flexibly. Flexible working may well be relevant to many other people in the workforce for many reasons including further education, religious observances, personal interests or other responsibilities outside the workplace.
It is open to these employees to make a request for flexible working and, although there is no legal obligation on the employer to consider such a request, it may well be prudent to consider the application on merit in the interests of encouraging a harmonious, committed and loyal workforce.
