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Legislation update: Be prepared to be flexible


In the first of a new series of articles providing legal advice, specialist employer lawyer Georgina Folkes from Withy King Solicitors advises on the new flexible working laws due to come into force on 6th April 2007, when adults of carers will be able to make flexible working applications which is likely to lead to a significant rise in the number of flexible working applications.

New laws on flexible working are being introduced on 6 April 2007 to widen the scope of those eligible to apply to their employer for flexible working. From that date carers of adults will be entitled to apply for flexible working in addition to parents of young or disabiled children as the law currently allows, giving an estimated 1.4 million employees the right to request flexible working to care for an adult.

A flexible working application can cover a huge range of requests to change working patterns from changing the number of working hours to changing the employee’s place of work. Common requests are to work part time, flexi time (allowing the employee to choose within agreed limits when to begin and end work), job sharing, working from home and term time working.
The defintion of ‘carer’ under the new law will be an employee who is or expects to be caring for an adult who:

  • 1. is married to, or the partner or civil partner of the employee
  • 2. is a near relative of the employee
  • 3. falls into neither category but lives at the same address as the employee.

The “near relative” definition includes parents, parent-in-law, son and daughter-in-law, adult child, adopted adult child, siblings (including those who are in-laws), uncles, aunts, grandparents and step-relatives.

In 1 and 2 above, the employee (carer) does not need to live at the same address as the partner or relative needing care, which widens the numbers of possible applicants dramatically.

Although the definition of ‘carer’ clearly sets out the relationship the employee must have with the person they are caring for in order to be able to qualify to make a flexible working application, the definition does not outline what ‘caring for’ actually means. The Department of Trade and Industry (DTI) has now published guidance on this issue.

What types of care are relevant?

The DTI guidance states that the sort of care-giving activities that carers of adults who request flexible working are likely to be involved in may include:

  • help with personal care (e.g. dressing, bathing, toileting)
  • help with mobility (e.g. walking, getting in and out of bed)
  • nursing tasks (e.g. daily blood checking, changing dressings)
  • giving/supervising medicines
  • escorting to appointments (e.g. General Practitioner (GP), hospital, chiropodist)
  • supervision of the person being looked after
  • emotional support
  • keeping the care recipient company
  • practical household tasks (e.g. preparing meals, doing shopping, domestic labour)
  • help with financial matters or paperwork.

This is not an exhaustive list. Some activities feature more prominently for some groups of carers than others. Carers of older people, for example, may need to ensure proper eating, while carers of people with mental health problems may need to order and supervise medication. In addition, carers of people who have mental health problems and are in paid employment may also need to help the person they care for with routine tasks such as getting to work.

The extension of the right to request flexible working to carers, and the broad way in which the definition of carers has been drafted, will mean that employers can expect a significant increase in the number of requests from employees to work flexibly. It is anticipated that the new laws relating to flexible working will cover around 80 percent of carers.

Eligibility to make a request

By way of a reminder, to be eligible to make a request under this right, a person must:

  • be an employee;
  • have worked for their employer continuously for 26 weeks at the date the application is made;
  • not be an agency worker or a member of the armed forces;
  • not have made another application to work flexibly under the right during the past 12 months.

The line manager/HR officer may be able to agree that the new working pattern will be put in place for a trial period in order to see how it would work before proceeding with the application but it should be remembered that once an application has been accepted, the change will be permanent unless a further application after a year is made and accepted or there is a change by mutual agreement.

A rejection of a flexible working application could result in a number of employment tribunal claims including sex discrimination and age discrimination. It is also worth remembering that employers can only reject flexible working applications for specific reasons which are prescribed by the legislation. Consequently, it is always worth taking specialist legal advice if you intend to reject a flexible working request.

Georgina Folkes is a specialist employment solicitor at Withy King Solicitors and can be contacted at: [email protected]

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