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Caring for Carers

 

There are approximately 7 million carers in the UK, which equates to 1 in 10 people. With an ageing population it is perhaps no surprise that this figure is set to increase by approximately 3.4 million people by 2030. It is also estimated that 60% of people will be carers at some point in their lives in the UK.

Many carers have to juggle their work commitments with caring responsibilities in their personal lives and it follows that employers will increasingly need to be aware of the range of employment rights of those with caring responsibilities. In particular, employers should be aware of the following rights which their employees with care responsibilities will have.

Time off for Dependants

Set out within sections 57A and 57B of the Employment Rights Act 1996 is the right for employees to take a “reasonable” amount of unpaid time off work to take “necessary” action to deal with particular situations affecting their dependants. With the exception of certain types of employment (for example those in the armed forces and the police force), this right applies to all employees, irrespective of length of service, gender, full time or part time status or whether they are employed on a permanent, temporary or fixed-term basis.

For an employee to have the right to take unpaid time off one of the following circumstances must apply:

  • To provide assistance if a dependant falls ill, gives birth, is injured or assaulted;
  • To make arrangements for the provision of care for a dependant who is ill or injured;
  •  In consequence  of the death of a dependant;
  • To deal with the unexpected disruption, termination of breakdown of arrangements for the care of a dependant;
  • To deal with an unexpected incident involving the employee’s child during school hours.

If the situation does not fall into one of the above categories it should be dealt with in contractual or ad hoc arrangements between the employer and employee.

A potential area for dispute is what action might be considered “necessary” in any given set of circumstances and this will depend on the particular facts of each case. The Employment Appeals Tribunal has stated that factors to be considered include “the nature of the incident which has occurred, the closeness of the relationship between the employee and the particular dependant and the extent to which anyone else was available to help out”.

What constitutes a “reasonable” amount of time off is not defined and will depend upon the nature of the incident and individual circumstances. However, case law does indicate that generally no more than a few hours or, at most, a day or two could be regarded as being reasonable. It is important to note that disruption or inconvenience to the employer’s business is not a factor to be taken into account.

A carer’s right to make a request for flexible working

Over the last few years, the right of employees to make a request for flexible working, and have that rejected only on certain grounds has been extended. Currently, employees with at least 26 weeks’ of continuous employment can make a written request for flexible working. However, only one such request may be made in any 12-month period. The changes that employees with caring responsibilities can request include a change to their hours, times and place of work. Indeed, there are very few limits to the types of variation that can be requested.

Importantly for employers flexible working requests must be taken seriously and dealt with in a reasonable manner. The employee should be notified of the employer’s decision within a period of 3 months, or such period as the parties may agree (which would be unusual) and a request can only be refused on one or more of the following grounds:

  • The burden of additional costs;
  • Detrimental effect on ability to meet customer demand;
  • Inability to reorganise work among the existing staff;
  • Inability to recruit additional staff;
  • Detrimental impact on quality;
  • Detrimental impact on performance;
  • Insufficiency of work during the periods the employee proposes to work; or
  • Planned structural changes.

The employer needs to make a careful written record of the decision, how it was reached and the various factors taken into account. This must then be communicated to the employee.

Application of Discrimination Laws

It is, of course, unlawful for an employer to discriminate against employees by reason of that employee’s protected characteristic (such as age, disability, gender, race and religion), However, the Equality Act 2010 does not protect employees with caring responsibilities themselves from discrimination, but a claim can be brought where the discrimination is in respect the protected characteristic of someone they care for. This has been termed direct discrimination by association.

The manner in which this principle operates was highlighted in the 2014 Employment Tribunal case of Truman v Bibby Distribution Limited. Mr Truman had received consistently good appraisals from his employer. He informed them that his wife would soon be starting a new business and that, in consequence, he would need to spend more time caring for his daughter, who suffered from cystic fibrosis. Mr Truman was then called into a meeting, advised by his employer that his employment was “not working”, and dismissed.

The Tribunal took into account that the dismissal occurred the day before Mr Truman was due to take leave to care for his daughter under his employer’s family leave policy and that another colleague had been asked to “gather as much dirt as he could” on Mr Truman. The Tribunal decided that Mr Truman had been discriminated against because of his daughter’s disability.

It is clear that the subject of caring for dependents will become more common in the work place and the issues arising will have to be dealt practically, and with understanding and sensitivity.

Disclaimer: This article is not intended to constitute legal advice.  For legal advice in connection with the above, please contact Simon Bean directly.

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