23 October 2006

Indirectly all employees are taking care of dependants through the payment of taxes to provide benefits and services such as the state pension. For some employees, however, the responsibility is a personal one, providing direct care for a child or elderly relative. The Government is gradually recognising the need for legislation to help working carers balance their responsibilities. This article tracks its progress, culminating in the forthcoming extension of rights to those employees who care for adults in April 2007. So what should employers being doing?

In December 1999 the statutory right to time off for dependants was introduced under the Employment Rights Act 1996. Although a step forward, this right is limited in use and is unpaid. It entitles the employee to take a reasonable amount of time off in an emergency, which involves a child, parent, partner or a family member living with them. In certain circumstances it may also extend to someone who relies on the employee, such as an elderly neighbour. The emergency situations which give rise to the statutory right to time off are:

• When a dependant falls ill, gives birth, is injured or assaulted
• The death of a dependant
• An unexpected disruption or termination of care arrangements
• An incident involving a child of the employee which occurs unexpectedly during school hours

The amount of time off which is reasonable will depend on the circumstances but is restricted to the time it takes to deal with the immediate crisis and to make any longer term care arrangements. For example, in the event of a death of a dependant, the employee is entitled to reasonable time off to make funeral arrangements etc. but not to time off to recover from the bereavement, which is subject to the employer’s policy on compassionate leave.

As the circumstances when leave is granted are sudden and unexpected the only notice provisions are that the employee notify the employer as soon as reasonably practicable. In some cases, this may be after the time off has already been taken.

Enabling working carers to have time off in an emergency still did not help them address the day to day juggling act and it was not until April 2003 that the Government introduced further legislation to assist them. The Flexible Working Regulations 2002 went the extra step further and gave certain employees the right to request changes to their working arrangements to enable them to balance their work and care commitments.

Although the 2002 Regulations are wide in their application, covering requests for all forms of flexible working, including working from home, they are limited in scope and only apply to employees with 26 weeks’ service who have parental responsibility for a child under the age of 6 or a disabled child under the age of 18.

Under the 2002 Regulations, employers have a duty to consider an employee’s request to change their hours, working times or place of work in order to care for the child. The proposal can only be rejected on the ground of a planned business reorganisation or because the change would result in:

• Additional costs
• A detrimental effect on ability to meet customer demand
• An inability to re-organise work among existing staff
• An inability to recruit additional staff
• A detrimental impact on quality or performance
• An insufficiency to provide work during the periods the employee proposes to work

Employees with care responsibilities for adults will have to wait until April 2007 to be given the same right to request flexible working under provisions made by the Work and Families Act 2006. The Government consultation on draft regulations closed on 25 April 2006 and is still waiting a response. One of the questions still to be confirmed is what relationship must exist between the carer and the dependant to qualify for the right to request flexible working. Caring for spouses, partners and civil partners will be covered but it is also possible that other immediate relatives will be included such as parents and children, including in-laws. Alternative proposals suggest the right could extend to a wider range of relatives including siblings, brothers and sisters-in-law, grandparents and uncles and aunts. As well as including family members it is likely that employees will also qualify if they care for an adult who is not a relative but lives in the home with the employee.

Piece by piece the Government is introducing legislation to meet the needs of dependants and their working carers but employers can also do their bit. Introducing flexible working policies, and responding positively to requests, will increase the commitment of staff that may otherwise be forced to leave owing to conflicting priorities. Replacing staff may be difficult and incurs an unnecessary cost if the arrangement could work in practice. Employers can introduce employee assistance programmes offering advice and support on issues concerning parenting and caring for the disabled and elderly, which can also ease some of the pressure on employees.