According to Care UK, three million people in the UK are juggling work with unpaid caring for disabled, seriously ill, or older loved ones. Many more will have dependants, such as spouses, children or others who rely on them for assistance and support.

Kerry Curd, a Partner in the employment team with WBW Solicitors runs through legal rights that employees who are Carers or have dependants have and proposals to change the law.

Flexible working requests

Employees have the right, once every 12 months, to request flexible working arrangements like part-time hours or homeworking once they have worked for you for 26 weeks. They must provide certain 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 and provide a decision within 3 months of the request.

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, base a refusal on incorrect facts, use a reason that does not fall within the permitted grounds for refusal, or fail to deal with the request in a reasonable manner or the 3 month time limit.

Even if you comply fully with the statutory rules on procedure, you may also face a more serious and costly discrimination and/or constructive dismissal claims if the reason for refusing the request amounts to discrimination or a breach of contract.

We recommend implementing your own Flexible Working Request Policy.  We also urge employers to take advice before rejecting a request to work flexibly, because recent case law has shown that justification for your decision can be closely scrutinised by the tribunal.

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. This right can therefore be used by an employee to deal with an immediate or unexpected crisis, but not where the employee knew of a problem in advance but did not make alternative care arrangements.

Only a reasonable amount of time off is allowed. Case law suggests that employment tribunals normally see a reasonable amount of time as a day or two, but what is reasonable will depend on the circumstances of each case.

Employees who take  time off for dependents must not suffer a detriment or dismissal for doing so and can bring an employment tribunal claim if this happens.

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 and the final details of this new right have not been published.

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, but the employee may still make a flexible working request. You only need to make reasonable adjustments to accommodate your employee’s disability. Having said that, there could be a risk of an indirect disability discrimination if there is a practice, policy or rule that disadvantages employees who care for disabled dependents. We therefore recommend contacting us for specific advice if, for example, an employee says that it is difficult to keep to their working arrangements because of caring responsibilities.

Sex discrimination

As women are more likely to be carers or care for dependants than men, they may be able to bring a claim for indirect sex discrimination if you have a practice, policy or rule that puts women with childcare responsibilities at a disadvantage. This would include a practice of always refusing requests for childcare friendly working arrangements. However, requests for childcare friendly working arrangements from women can lawfully be refused if the refusal is objectively justified. As this is a complex area of law, we recommend contacting us for specific advice before operating a practice, policy or rule of always refusing requests for certain childcare friendly working arrangements.

How we can help

We can ensure that you have the correct policies and procedures in place to support carers and employees with dependants. If your business cannot accommodate the impact of your employee’s caring responsibilities, we can help ensure you act lawfully. ease contact Kerry Curd in the Employment team on 01626 202406 or email kerrycurd@wbw.co.uk.

WBW has offices in Torquay, Paignton, Newton Abbot, Exeter, Bovey Tracey,  Exmouth,  Honiton,  Sidmouth,  Launceston,  Axminster, Chard and Seaton.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.