Flexible working: extending the right to carers

Sue Nickson, Partner and International Head of Human Capital at Hammonds, begins a series of articles on flexible working with a look at the extension of the right to request flexible working to carers of adults.

Since April 2003 working parents of children under the age of six, or of disabled children under the age of 18, who have 26 weeks' continuous service with their employer have had the right to request flexible working. This right was introduced into the Employment Rights Act 1996 by the Employment Act 2002. Details on the procedure for requesting flexible working are contained in the Flexible Working (Procedural Requirements) Regulations 2002 and details on eligibility, complaints and remedies are contained in the Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002.

Eligible employees have the right to request a change to the number of hours that they work or the times that they are required to work, or to work from home. Flexible working requests can cover a range of working practices, including part-time working, home working, flexitime, job sharing and teleworking.

The extended right

Since the right to request flexible working was introduced, there has been pressure on the Government to extend it to a greater number of employees. During 2005 and 2006 the Government consulted on extending the right to employees with older children or to all employees. However, it has decided to extend the right only to carers at this stage. This is an attempt, on the Government's part, to stem the large number of carers who are apparently dropping out of the labour market.

The extension of the right to request flexible working to carers of adults aged over 18 is introduced under the Work and Families Act 2006. Details are contained in the Flexible Working (Eligibility, Complaints and Remedies) (Amendment) Regulations 2006, which come into force on 6 April 2007.

Definition of 'carer'

The Government does not define 'carer' in the legislation. However, it does define the relationship between the carer and the person for whom he or she cares. The person requiring care must be:

  • the employee's spouse, civil partner or partner ('partner' includes the other member of a heterosexual couple who are not married but are living together as if they were husband and wife, or of a same-sex couple who are not civil partners but are living together as if they were);
  • the employee's relative (under the Regulations, 'relative' means a mother, father, adopter, guardian, special guardian, parent-in-law, step-parent, son, step-son, son-in-law, daughter, step-daughter, daughter-in-law, brother, step-brother, brother-in-law, sister, step-sister, sister-in-law, uncle, aunt or grandparent and includes adoptive relationships); or
  • an adult who lives at the same address as the employee.

Proof of eligibility

Employers are not entitled to request evidence of employees' caring responsibilities. Furthermore, if an employer does take steps to verify an employee's eligibility, it needs to be careful that it does not open itself up to a claim of, for example, discrimination.

Guidance from the Government on the right to request flexible working -Flexible Working: the right to request and the duty to consider - stresses that patterns of care-giving vary considerably from case to case and gives examples of the activities that carers may be undertaking. These include:

  • help with personal care (eg dressing, bathing and toileting);
  • help with mobility (eg walking and getting in and out of bed);
  • nursing tasks (eg daily blood checking and changing dressings);
  • administering medicines;
  • escorting to appointments (eg doctor, hospital and chiropodist);
  • supervision of the care recipient;
  • emotional support;
  • keeping the care recipient company;
  • practical household tasks (eg preparing meals, doing shopping and housework); or
  • help with finances or paperwork.

As outlined above, employees do not have to produce evidence of their caring responsibilities in order to be eligible to request flexible working. They are simply required to explain how they satisfy the requirements relating to the relationship with the person being cared for. As a general rule, an employer should be satisfied with an employee's explanation as to why he or she wants to work flexibly and his or her eligibility to make a request. In practice, it is difficult to verify whether or not an employee is telling the truth. Therefore, flexible working policies and procedures should clearly state that if an employee is dishonest and/or misleads the employer disciplinary action may be taken.

Employers should not subject an employee to any detriment as a result of his or her asserting a right to request flexible working - care should therefore be taken before instituting any disciplinary proceedings.

While some employers may be concerned that unscrupulous employees might request flexible working even though they are not genuinely caring for others, there has been no evidence to suggest that employees have abused the existing right to request flexible working, so such fears may prove to be unfounded.

Expected impact of the new provisions

According to Carers UK, a campaigning organisation for carers, 10% of the population (some 5.2 million people) are carers and 3.9 million of these are of working age. It has said that over 1.5 million carers could take advantage of the new right. However, as any change to an employee's pattern of work as a result of a request to work flexibly represents a permanent change to his or her employment contract, the Government anticipates that only those with significant caring responsibilities are likely to make a request. According to its Regulatory Impact Assessment, it estimated that there will be 350,000 new requests per annum.

The Government's Second Flexible Working Employee Survey, conducted in 2005, revealed that 79% of employees who had made a request to work flexibly said that they had done so through discussion and only 16% had made their request in writing. This implies that most requests are being handled informally.

Employers need to be aware that the right to request flexible working has been extended to a greater number of employees and should amend their policies accordingly. See XpertHR's model policies and documents on flexible working.

Next week's article will look at the procedure for considering a flexible working request.

Sue Nickson is Partner and International Head of Human Capital at Hammonds (Sue.Nickson@hammonds.com)

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