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Flexible Working for Carers

The Work & Families Act also extends the current legislative provision to covers carers.  The Government feels that carers should have more choice about how they balance their work and caring responsibilities whilst meeting the needs of the business.  The thrust of the new regulations is to encourage the employer and employee to find a flexible working solution that meets both of their needs.  The Law does not however provide the automatic right to work flexibly. 

Current regulations require employers to consider such requests seriously and recent case law has meant that tribunals now have the power and are expected to “investigate the evidence”, “examine the facts objectively” and “see whether the ground which the employer asserts is the reason he has not granted the application is factually correct”.

The new regulations define a carer as someone who is:

• Married to, or the partner or civil partner of the dependant; OR
• An immediate or near relative of the dependant; OR
• Neither of the above but lives at the same address; AND
• The carer must have six months qualifying period of continuous employment with their employer (at the point the application is made).

The definition of a near relative will include parents, parents-in-law, adult child (including an adopted adult child), siblings (including those who are in-laws), uncles, aunts, grandparents and step-relatives.

The options are therefore that the relative is either an immediate relative (the mother, father, child, adopter, guardian, parent, parent-in-law or child) or a near relative (a sibling, sibling-in-law, uncle, aunt or grandparent).

It is estimated that this will provide the right to around 1.5m carers.  (The Government have assumed that the definition of some one needing care will be those in receipt of Disability Living Allowance of Attendance Allowance).

The Procedure

The employee must:

• Make the application in writing, stating that it is being made under the statutory right to apply for flexible working;

• Confirm their relationship to the child or the status of the individual they are caring for;

• Set out their proposal and explain what effect they think this will have on the employer's business and how this may be dealt with;

• Ensure that the application specifies a start date for the proposed change giving the employer reasonable time to consider the proposal and implement it;

• State whether a previous application has been made and if so the date on which it was made;

• Date the application.

The employer must:

• Arrange a meeting with the employee within 28 days of receiving the application to discuss the request. This meeting is not required if the employer agrees to the terms of the application and notifies the employee accordingly within 28 days of receiving the application.

• Allow the employee to be accompanied by a work colleague if they so wish

• Notify the employee of their decision within 14 days of the date of the meeting. This notification will either:
  • Accept the request and establish a start date and any other action or
  • Confirm a compromise agreed at the meeting or
  • Reject the request and set out clear business reasons for the rejection together with notification of the appeals process

• Arrange to hear the employee's appeal within 14 days of being informed of the employee's decision to appeal. The employee must be allowed to be accompanied by a work colleague if they so wish.

• Notify the employee of the decision on the appeal within 14 days after the date of the meeting. The notification will either:

• Uphold the appeal, specify the agreed variation and start date or
• Dismiss the appeal, state the grounds for the decision and contain a sufficient explanation of the refusal.

The employer and the employee can agree to extend any of these time limits. The employer must record this agreement in writing, specifying the period to which the extension relates and the date on which the extension is to end. A copy of this record must be sent to the employee.

Remember, any change agreed is a permanent change to the contract of employment!

Further information can be found here.