Caring responsibilities can place a huge strain on employees, both physically and mentally, and can potentially have negative effects on their productivity and wellbeing. Chris Phillips looks at the legal obligations and business benefits of supporting carers in the workplace.
With an estimated one in seven UK employees having caring responsibilities outside work, the impact of a recent judgment by the European Court of Justice (ECJ) is set to be hugely significant. It will force employers to re-examine and broaden the reach of their equal opportunities and flexible working policies.
According to recent government figures, only 7% of people realise carers have the right to request flexible working. However, those caring for disabled children have had the right to request flexible working arrangements for a number of years and this was extended to carers of adults from April 2007. As a result, a new government-led awareness campaign about the rights of carers will be launched this year in a bid to avoid similar situations, such as those scrutinised at the recent ECJ trial.
"Only 7% of people realise carers have the right to request flexible working."
The case in question was brought by Sharon Coleman, primary care-giver for her disabled son, who requires specialised care. She accepted voluntary redundancy from her employer and subsequently lodged a disability discrimination claim alleging she was treated less favourably because she had to care for her son.
She was reportedly told she was not allowed to return to work following maternity leave, denied the flexibility of hours, and suffered abusive and insulting comments about both her and her son. Ms Coleman faced difficulties due to the wording of the Disability Discrimination Act 1995 (DDA), which says a person can only make a claim if they have been treated in a discriminatory manner because of their own disability.
However, the DDA, as with all UK discrimination legislation, is based on a European directive. It states discrimination should be prohibited if it is on the grounds of disability, rather than the employee's own disability. Ms Coleman's case, therefore, highlighted how UK government has not properly implemented the European directive. Her argument has been successful, with the court ruling protection from disability discrimination should not be restricted to those who are themselves disabled, but will extend to individuals like Ms Coleman, who are caring for a disabled person.
Current legislation criticised
It comes as the current flexible working legislation has been criticised for lacking teeth as compensation can, in many cases, be limited to eight weeks pay capped at the statutory limit, currently £330 per week. The possibility of bringing a tribunal claim, which results in a substantial pay-out, has opened up to more potential claimants if they can show the person they are caring for is disabled and they have been treated less favourably than colleagues, because of their responsibilities.
The Coleman judgment and the prospect of the awareness campaign means employers have work to do. Caring can place a huge strain on employees, both physically and mentally, so it's unsurprising that one in every five carers give up work to care full-time. It falls on management to review policies and practices to create a culture where the specific needs of carers can be met in the workplace without fear of reprisal. Case studies illustrating how flexible working has, or could potentially benefit an organisation is one way of doing this.
One in two members of the Institute of Directors recently surveyed indicated there was a noticeable impact on their bottom-line from implementing flexible working arrangements. All the measured effects of flexible working were found to be positive, including the impact on, among others, productivity, profitability, customer service and absenteeism.
"One in every five carers give up work to care full-time."
Policy is only one aspect, but this must be underpinned by training for line managers who are putting policies into practice. Training should not just focus on the mechanics of a flexible working request, but should consider the employee's responsibilities as a carer so the manager understands the employee's needs and can properly balance this with the needs of the organisation.
If individuals feel able to approach management about their responsibilities, it means the need for time out of the workplace can be planned, rather than coming in the form of unexpected absences. Support from larger employers can also come from in-house carer networking groups, whereas employers of all sizes can benefit from links with organisations such as Carers UK, which has recently set up a new membership forum called Employers for Carers.
Many carers want and, indeed, need to work. However, they are required to juggle two jobs, their paid employment and their caring responsibilities, both of which are rewarding and demanding in their own ways. The employer who provides a supportive environment in which both roles can co-exist is the employer most likely to reap its own rewards and avoid costly legal action.
Chris Phillips is a partner in the employment team at Maclay Murray & Spens LLP.
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