Date 5 April 2007
Since April 2003 employees with children under the age of six (or disabled children under the age of 18), have had the right to request flexible working from their employers, in order to care for their children. From April 2007, this right will be extended to employees caring for dependant adults, providing they have worked for an employer for a continuous period of 26 weeks. The reasoning behind this is quite simple. The number of adults caring for dependant adults has increased substantially and the Government has recognised the need for flexibility in their employment. The aim is to allow employees to continue to work and adequately carry out their carer's duties.
What is flexible working?
Flexible working is not defined in the Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002 as amended in 2006 (the "Regulations"). It is for an employee to request the type of flexible working arrangement desired, such as part-time, flexitime, compressed hours, changed/reduced hours of working, working from home, term time working and annualised hours.
Who is a "carer" and who can be "cared for"?
The Regulations define a "carer" as an employee who is or expects to be caring for an adult who:
- Is married to, or is the partner of the employee.
- Is a near relative of the employee.
- Falls into neither category but lives at the same address as the employee.
The "near relative" definition is broad and includes parents, parents-in-law, adult children, adopted adult children, siblings (including those who are in-laws), uncles, aunts, grandparents or step-relatives. There is no requirement for the employee to show whether there is any other person who could provide care.
What is "caring"?
The Regulations do not define "caring". The DTI has issued guidance to assist employers when making decisions on whether or not to agree to requests for flexible working. The following activities will amount to "caring":
- Help with mobility.
- Assistance with personal or nursing care.
- Giving or supervising the taking of medication.
- Accompanying to hospital/doctor's appointments.
- Assisting in "household tasks" (such as shopping, cooking or cleaning) or with financial matters/paperwork.
- Providing emotional support or keeping the "care recipient" company.
Evidence
An employer does not have a right to request evidence and an employee does not have to provide details about their "caring" obligations. However, the actual request for flexible working must:
- Be made in writing and dated.
- State clearly that it is a request/application for flexible working.
- State whether a previous application has been made and if so, when.
- Explain the change being asked for and the date on which any new arrangements would start.
- Identify the effect of any change on the employer and how that might be dealt with.
- Explain the relationship between the employee and the child/adult who is to be cared for.
- State whether any applications for flexible working have been made previously.
The DTI believes that false requests for flexible working will be minimal, given that changes implemented in consequence are likely to be permanent and will usually result in salary cuts in line with any reduction in hours. The DTI has issued guidance for employers in the event there is any doubt about the authenticity of any such request, namely to request voluntary disclosure of evidence from an employee and consider taking disciplinary action where necessary. Any evidence voluntarily provided would assist the employer in making its decision. However, an employee cannot be treated less favourably or suffer any detriment as a result of making a request for flexible working. Disciplinary action must only be taken in obvious cases of abuse.
Refusing a request
There are specific grounds on which a request for flexible working may be refused. The employer must consider the request and if refused, must explain the reason for refusal, being due to one of the following specified grounds:
- Costs.
- Reduction in ability to meet customer demand.
- Detrimental impact on quality or performance.
- Difficulties in reorganisation of work.
- Insufficiency of work during the periods of work proposed by employee.
- Planned structural changes to the business of the employer.
An employee is entitled to know why a request has been refused and if the employer fails to do so the employee has a right to complain to an employment tribunal. Employees are not required to bring a grievance prior to lodging a complaint with an employment tribunal in respect of flexible working. Upheld complaints can entitle a successful employee to a maximum of eight weeks' pay, capped at £2,480. Employers must also bear in mind that refusal to grant such a request could amount to discrimination (if not properly considered or the grounds for refusal not substantiated). Compensation for a successful complaint of discrimination is unlimited.
An employer is not bound to consider an employee's personal circumstances when making a decision on whether or not to grant a request for flexible working, but the practical impact on the business. An employer should consider a trial period if it has doubts as to the feasibility of the flexible working proposal in the long term.
Frequency of requests for flexible working
Employees are entitled to make one request in any twelve month period, hence the date of the request is important.
Action for employers
In order to prepare for the forthcoming changes in April 2007, employers are advised to put the following steps in motion:
- Review your existing flexible working policy on and ensure reference is made to include the extension of the right to those caring for adults.
- Using the DTI guidance set out above, cite a list of examples of 'caring' responsibilities within any policy implemented to assist your managers when dealing with flexible working requests.
- Ensure all time limits set out in any policies are compliant with the Regulations.
Put in place a specific application form for use by employees when making a request for flexible working.
- Ensure personnel staff and managers are adequately trained in dealing with requests for flexible working and more importantly, the grounds for refusal, bearing in mind the employee's right of complaint to a tribunal and the tribunal's powers of investigation and compensation.
- Ensure personnel staff and managers are aware of the dangers of discrimination in any refusal of a request.
- Consider the extension of the right to request flexible working to all employees and not just those caring for adults or children, in order to minimise the risk of discrimination.
If you require any further information or assistance with any of the issues featured in this article, or would like to arrange an audit of your employment practices, please contact either Chris Cook on 01727 798017 or at chris.cook@salaw.com.
© SA LAW 2007
Every care is taken in the preparation of our articles. However, no responsibility can be accepted to any person who acts on the basis of information contained in them. You are recommended to obtain specific advice in respect of individual cases.