Employment rights for carers?

Catriona Watt is an employment law expert at Fox lawyers,  www.foxlawyers.com

Business, Government and charity leaders have recently backed better support for employees who balance a job with caring for an older or disabled person. Ministers have also announced that six Government departments will sign an agreement with “Employers for Carers” on how they will work in partnership to develop and promote support for carers in the workplace.

Carer’s rights are on the current Government’s agenda as part of its endeavour to increase employment rates in the UK. The proportion of people having to balance work while caring for another will increase as life expectancy continues to rise and as people work longer to save for retirement. In its White Paper “Building Britain’s Recovery: Achieving Full Employment” published on 19 December 2009 the Government emphasised its aim to work with employers to promote flexible working practices. It intends to carry out consultations on how it can help people meet their caring responsibilities while remaining in work. This may include additional unpaid leave for planned responsibilities such as hospital visits and unpaid leave for carers of someone with a terminal illness.

At present, the law allows employees “reasonable” time off in certain circumstances and only in respect of “dependants” (which is limited to a spouse, civil partner, child or parent (but not grandparent) of the employee, or a person who lives in the same household as the employee). There is no specific guidance as to what constitutes “reasonable” time off but case law has shown that it will usually be a few hours or in some cases one or two days. Often this will not be long enough and it most cases it can be difficult for the employee to determine exactly when they might be able to return to work. 

Carers also have the right to request flexible working which an employer must accommodate unless it has a “legitimate business reason” for refusing the request. Some commentators have suggested that the right to request flexible working is a right without teeth because an employment tribunal can only subject the employer’s decision to very limited scrutiny and can only make very low awards of compensation if the right is breached. Employees also tend to find it difficult to discuss flexible working with their employers for fear of portraying themselves as not committed to their job.

Carers will however welcome the recent decision in the case of Coleman v Attridge Law which developed the concept of “associative discrimination”. This means that carers may also resort to the Disability Discrimination Act where they are treated less favourably than others or subjected to harassment because of the disability of the person they care for. The Government has already decided to prohibit associative discrimination in relation to other strands of discrimination (i.e. age and sex) in the Equality Bill, currently before Parliament, which is intended to come into force in October 2010.

The current Government has said that its long term ambition is to ensure that flexible working practices are embedded in all businesses across the UK, so that all employees are able to discuss opportunities for flexible working with their employer from day one of employment, or even pre-employment.

Of course a new Government may approach this issue very differently and it remains to be seen how this agenda is progressed after May 6th. Watch this space.

This is a general account of the law as it currently stands. It is always best to seek legal advice for specific queries.