Improving Flexible Working Rights for Carers
A ‘What’s New’ post contributed by David Laurence and Samson Dawodu of the Disability Law Service.
Those who care for disabled people should be entitled to reasonable adjustments in the workplace under the Equality Act. Whilst Disability Law Service is campaigning for this change, given the current government focus on reviewing flexible working rules, we feel that new regulations could make improvements which would mark a step in the right direction.
Disability Law Service is a charity that has provided free legal advice to disabled people and their carers since 1975.
Currently, while disabled people have a right to reasonable adjustments in the workplace to enable them to gain or retain employment, carers only have the right to request flexible working, the same as anyone else in the workforce.
Given that, according to a survey we conducted earlier this year, 52% of carers are refused their request for flexible working, and 72% said that they would work or would work more if they could work flexibly, it is our view that carers should have the right to reasonable adjustments in the workplace under the Equality Act 2010. This can be achieved by a simple amendment to the Equality Act providing carers the same rights to reasonable adjustments as are currently afforded to disabled people.
However, given the forthcoming Government review of flexible working which is due to take place next year, there are some constructive improvements to carers’ rights in the workplace that can be achieved through amending flexible working regulations. In this regard it is to be noted that the constraints imposed by the Employment Act 1996 mean that regulation can only achieve certain changes.
Whilst such changes will not, in our view, be sufficient, they will at least be a step in the right direction.
Comparing Reasonable Adjustments and Flexible Working
The following table provides a very brief comparison of the inadequacies of flexible working when compared to the right to reasonable adjustments.
| Reasonable Adjustments | Flexible Working |
|
Employer must be reasonable. |
Employer may be unreasonable. |
| Duty to grant reasonable adjustments. | Only right to request flexible working. |
| Available immediately and as many times as necessary. | Only available after 26 weeks and only one request per year |
| A reasonable adjustment may include a transfer to another office (eg: to be near a special school). | Only changes to working times and working at home permitted. |
| A reasonable adjustment could include a transfer to another position. | No transfers to other positions contemplated. |
| Agency workers may claim reasonable adjustments. | No right for agency worker to request flexible working. |
| Possible to remain in employment and make a substantial claim. | Claims nominal in value unless drastic step of leaving employment taken. |
| Remedies include uncapped damages for loss of earnings. | Damages are capped. |
| Remedies include damages for injury to feelings. | No damages for injury to feelings. |
It is clear from the above table that the law on flexible working significantly falls short when compared to reasonable adjustments.
It is our view that regulations can be made to address some of the above inadequacies by way of improving flexible working rights for carers.
New Flexible Working Rights For Carers
The Employment Rights Act 1996 (ERA 96) provides the Secretary of State with the power to make regulations on flexible working.[1]
There are limits on what may be achieved but in our view changes may be introduced: as to when a carer may request flexible working; to allow a carer to change the branch or office in which they work; to allow a carer to move to an alternative, suitable position; and as to the amount of compensation an employment tribunal may award to a carer.
Definition of Carer
We believe that a carer can be defined simply as someone who:
- has primary responsibility for providing care to a person who meets the definition of a disabled person under the Equality Act 2010[2]; and
- receives no payment for this other than carer’s allowance or a carer premium in respect of a means-tested benefit.
Day One Rights
Carers are not entitled to request flexible working until they have been in continuous employment for 26 weeks.[3]
It is our view that regulations should be made providing carers with the right to request flexible working from the commencement of their employment.[4]
Place of Work
Under flexible working, an employee is limited to requesting a change in relation to his working times and working from home.
It is our view that regulations should provide carers with the right to work from an alternative branch or office[5]. This would allow a carer, for example, to work at an office that is located nearer to a special school where their child is being educated. Such a change would be permitted as a reasonable adjustment.
This would help to overcome the unfortunate ruling of the Court of Appeal in Hainsworth v Ministry of Defence[6].
In this 2014 case, the appellant was a civilian employee attached to the British armed forces and was required by the respondent to work within a British enclave in Germany. The appellant’s daughter was disabled and the appellant submitted a formal request to be transferred to a location within the United Kingdom in order to be able to meet the special needs of her daughter – that request was rejected. The appellant argued that the requested relocation would be a reasonable adjustment for the purposes of the 2010 Equality Act.
The appellant lost her appeal, with the court making clear that carers have no right to request reasonable adjustments. As a result, the mother of a 17 year old disabled young person was unable to even seek a reasonable adjustment in order that she may continue in work and conduct her duties as a carer.
An amendment to the flexible working regulations can and should be made to address this unfortunate state of affairs.
Roles and Positions
A reasonable adjustment may take the form of redeployment into other vacant roles if there are no reasonable adjustments that can be made to the contractual role. As long as the role is broadly suitable for the employee, even if at a slightly higher level, this should be without a competitive interview.
It is our view that a carer should have the same right right under flexible working regulations.[7]
Compensation
If a complaint to a tribunal is upheld in relation to a flexible working request, the maximum compensation currently payable by the employer is eight weeks’[8] pay and an order that the request for flexible working be reconsidered.[9]
This is very limited when compared with the rights to compensation available where a reasonable adjustment is improperly refused.
It is our view that employers should be appropriately incentivised to treat carers’ requests for flexible working seriously, and that this should be reflected in an increased level of compensation. Accordingly, we believe that the cap on compensation should be increased to 16 weeks pay in the case of carers.[10]
David Laurence (non-practising solicitor) is the Manager of Policy Advocacy at Disability Law Service; Samson Dawodu is a paralegal at Disability Law Service.
[1] Sections 80F(1)(a)(iv), (5), (8)(a)(i), (9); 80G(1)(b)(ix); 80(I)(3); and 236 (generally).
[2] Under Section 80F(9) of the Employment Rights Act 1996, the Secretary of State is entitled to make different provisions for different cases. This entitles the Secretary to introduce carers as a class of persons for which new rights under flexible working may be provided.
[3] Regulation (3) of the Flexible Working Regulations 2014.
[4] The Secretary of State is permitted under Section 80F(8)(a)(i) of the Employment Rights Act 1996 to specify the duration an employee must satisfy before qualifying for the right to request flexible working. In further exercise of his power under Section 80F(9) of the Act, the Secretary can specify a different qualifying period solely for carers.
[5] This is possible by way regulation as section 80F(1)(a)(iv) of the Employment Rights Act 1996 permits the Secretary of State to specify additional aspects of an employee’s terms and conditions that may be varied, and section 80(F)(9) allows for different provisions to be made for different cases (see footnote 2, ante).
[6] [2014] EWCA Civ 763.
[7] This is possible for the same reason as is explained in footnote 5, ante.
[8] Regulation (6) of the Flexible Working Regulations 2014 and Section 80I(1)(b) of the Employment Rights Act 1996.
[9] Section 80I(1)(a) of the Employment Rights Act 1996.
[10] Section 80I(3) of the Employment Rights Act 1996 allows the Secretary of State to set the maximum compensation payable – it is to be set as a number of weeks’ pay. Given that Section 6(C) of the Interpretation Act 1978 provides that, unless the contrary intention appears, words in the singular include the plural it is our view that it is open to the Secretary of State to set more than one maximum, such that a separate and higher cap for carers may be applied.
Posted 23 August 2018
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