Balancing caring and working – employment rights of carers

This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.

According to Carers Trust, there are almost seven million people in the UK - around one in ten - providing unpaid care for a family member or friend who cannot cope without their support.

Around three million of these carers are also in employment. Carers may be providing support for an elderly relative, a terminally ill partner or a disabled child and face the difficult task of balancing their working and caring responsibilities.

In addition to financial support which carers may be able to claim, employment law can also provide employees with caring responsibilities increased support and protection in the workplace. For example:

Flexible working- since 30 June 2014, all employees with 26 weeks' service now have a statutory right to request flexible working. This was previously limited to employees with children up to the age of 17 (or 18 in the case of those with disabled children) and those with qualifying caring responsibilities. Flexible working arrangements can include part-time working, flexi-time or working from home.

Under the statutory procedure, employees can only make one request in any twelve month period and their employer is obliged to consider and decide upon requests (including any appeals) within three months of the receipt of the request. An employer is not bound to accept a request, but can only reject it on one of the prescribed statutory grounds (albeit these grounds are wide ranging). Potentially, rejection of a request could also give rise to a claim for indirect discrimination and employers should ensure they give serious and proper consideration to any flexible working request even where any rejection would be based on one of the prescribed statutory grounds.

Right to take time off for dependants -employees have the right to take a reasonable amount of unpaid time off work to take "necessary" action to deal with unexpected and immediate crises affecting their dependants.

This allows employees to take time off to take measures such as providing assistance when a dependant falls ill or arranging alternative care for a dependant. However, this will not apply to planned time off or time off to provide longer-term care for a dependant, and will only usually extend to one or two days as a maximum to deal with the immediate emergency in question.

Associative discrimination -since 2008, employees and job applicants now receive protection from being discriminated against - specifically, being treated less favourably than others or harassed - not only because of their own protected characteristic (such as disability or age) but because of their association with someone else with the characteristic.

For example, if an employer refused to offer an applicant a job or refused an existing employee a promotion on the assumption that the employee would be a burden or would not be able to cope with the additional responsibilities due to them being a carer of a disabled family member, the individual could have a claim against the employer for discrimination.

Parental leave - from 5 April 2015, the right to take unpaid parental leave will be extended so that employees with parental responsibility may take leave up until their child's 18th birthday. Previously, this right only applied up until the child's fifth birthday (with exceptions in the case of adoption or disability). Qualifying employees can take up to 18 weeks' unpaid leave per child for the purpose of caring for the child.

With the numbers of carers in the workforce only likely to increase, as a minimum employers should be aware of the legal rights of employees who act as carers. Taking proactive measures to ensure that carers are able to strike a balance between their home and work responsibilities may allow employers to retain skilled staff and reduce recruitment costs.

Carers Trust which provides support, information, advice and services for the millions of carers in the UK is currently Olswang's charity partner - click here for more information from Carers Trust about supporting carers in the workplace.