According to Care UK, three million people in the UK are juggling work with unpaid caring for disabled, seriously ill, or older loved ones. NHS England reports that carers are twice as likely to have poor health than those without caring responsibilities.
‘Working carers do have some legal rights. With the number of unpaid carers predicted to increase, employers may wish to go above and beyond these legal rights to support these employees and their wellbeing and to help retain them in the workforce,’ says Stuart Snelson, Partner in the Employment team. Stuart Snelson runs through the legal rights, likely changes to the law and steps employers can take to support carers.
Flexible working requests
Employees have the right, once every 12 months, to request flexible working arrangements like part-time hours or home working once they have worked for you for 26 weeks. They must provide particular information in their request. Employers need to deal with a request reasonably and in accordance with the Acas Code of Practice on flexible working requests.
The request can be turned down for one of eight broadly-worded business reasons, such as a detrimental impact on the ability to meet customer demand. You may be liable to pay up to eight weeks’ pay (currently capped at £544) if you do not follow certain procedural requirements or base a refusal on incorrect facts.
In September 2021, the Government launched a consultation on reforming this right, including doing away with the need for 26 weeks’ service to make a request. The consultation ends on 1 December 2021.
Right to time off for dependants
Employees are allowed to take unpaid time off work to deal with care arrangements for a dependant in specific circumstances, such as where existing care arrangements fall through, or a dependant is injured. Only a reasonable amount of time off is allowed. Case law suggests that employment tribunals see a reasonable amount of time as a day or two. If the employee suffers a detriment, such as being given a warning or being dismissed for exercising this right, they can bring an employment tribunal claim.
Following consultation in 2020, the Government announced in September 2021 that it would introduce the right for carers to take one week’s unpaid leave for dependants. We do not know yet when this will come into force.
Protection from disability discrimination
Carers are protected from being treated less favourably because of the disability of a person they care for. For example, a tribunal found that an employer directly discriminated against an employee by dismissing him, seemingly out of the blue, after he told a colleague that he would be taking on more caring responsibilities for his disabled daughter.
Employees are also protected from being harassed by a colleague because they care for, or are friends with, a disabled person. Employers can be liable to pay the damages awarded for this harassment.
What about reasonable adjustments?
Employers do not have to go so far as to make reasonable adjustments, such as changing an employee’s working hours to accommodate the needs of their disabled dependant. You only need to make reasonable adjustments to accommodate your employee’s disability. Having said that, employees in similar circumstances might be able to bring an indirect disability discrimination claim. We recommend getting in touch for advice if, for example, an employee says that it is difficult to keep to their working arrangements because of caring responsibilities.
Women are more likely to be carers than men. Female carers may be able to bring a claim for indirect sex discrimination if you insist on particular working arrangements.
There are a number of things employers can do to support carers who often need to respond quickly to changing circumstances. You can set these down in a carers’ policy. Some of these may become a legal requirement in the near future. These include:
– extending the right to request flexible working to all employees from day one;
– allowing more than one request for flexible working per year;
– quick responses to requests for flexible working; and
– compassionate leave for longer periods, for example to care for someone recovering from surgery.
How we can help
We can draw up a policy that extends support for carers. If your business cannot accommodate the impact of your employee’s caring responsibilities, we can help ensure you act lawfully. Please contact Stuart Snelson in the Employment team on 01908 689318 or email firstname.lastname@example.org.