Are you flexible enough to care |
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| Introduction |
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| This article is based on the Flexible Working Regulations 2006, which has resulted from the Work and Families Act 2006. |
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| It is useful reading for all employers, and employees who ‘care’ for someone, whether that be a child, relative, or someone who lives in their home. |
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| The government has issued a revised a DTI Guide - Flexible Working "The right to request and the duty to consider", December 2006, which takes account of these changes. |
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| The Work and Families Act 2006 |
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| Additional secondary legislation will: |
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- Extend maternity and adoption pay from six to nine months from April 2007, towards the goal of a year's paid leave by the end of the Parliament;
- Extend the right to request flexible working to carers of adults from April 2007;
- Give employed fathers a new right to up to 26 weeks Additional Paternity Leave some of which could be paid, if the mother returns to work. This will be introduced alongside the extension of maternity pay to 12 months;
- Introduce measures to help employers manage the administration of leave and pay and plan ahead with greater certainty from April 2007;
- Help employers and employees benefit from improved communication during maternity leave.
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| This article concentrates on the flexible working rights of carers Background to the Regulations |
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| The new Flexible Working Regulations 2006, which have been introduced as part of the government’s plans to extend family rights under the Work and Families Act 2006, will mean that employers will, from April 2007, be obliged to consider requests for flexible working from those who care for certain adults. |
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| This right has been available to employees with children under six (or with disabled children under 18) since 2003, and has been taken up extensively. Recent surveys show that 47% of new mothers work flexibly and 74% of businesses say that this has had no effect on the workplace. |
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| Aim of the regulations |
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| The regulations do not provide an automatic right to work flexibly as there will always be circumstances when the employer is unable to accommodate the employee’s desired work pattern. The right is designed to meet the needs of both parents and employers, especially small employers. |
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| It aims to facilitate discussion and encourage both the employee and the employer to consider flexible working patterns and to find a solution that suits them both. The employee has a responsibility to think carefully about their desired working pattern when making an application and the employer is required to follow a specific procedure to ensure requests are considered seriously. |
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| Who qualifies as someone who needs care? |
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| To qualify as a carer, the person you care for must either be: |
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- Your spouse or partner;
- Someone who is a near relative of the employee;
- Someone who lives at the same address as the employee.
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| NB-near relatives can include in-laws, uncles and aunts, and step-relatives |
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| This is in addition to the rights to flexible working given to parents and guardians in 2003. |
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| It is estimated by the DTI that 6.5% of the working population will fall within this definition of carer and that 1.4 million carers will be eligible to request flexible working from April 2007 as a result of the new right. |
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| What constitutes flexible working? |
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| Flexible working can include: |
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- Decreased hours;
- Different hours;
- A different pattern of working;
- Or working from home instead of from the employer's place of business.
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| The legislation also gives the DTI power to make regulations extending the categories of terms and conditions of employment to which changes may be requested. |
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| The correct procedure |
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| It is up to the employee to make a considered application in writing. They are only able to make one application a year under the right, and accepted applications will mean a permanent change to the employee’s own terms and conditions of employment unless otherwise agreed between both parties. |
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| You must comply with the following rules when making a request. Your application must: |
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- Be made in writing, in either paper or electronic form, stating that it is being made under the statutory right to;
- Apply for flexible working;
- Confirm your relationship to the person who needs care;
- Set out your proposed change to your working patterns and explain what effect you think this change would have on your employer and how this might be dealt with;
- State whether you have made a previous application under this right and if so the date on which it was made; be dated.
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| Within 28 days of receiving the request, the employer must arrange to meet with the employee. This provides the employer and the employee with the opportunity to explore the proposed work pattern in depth, and to discuss how best it might be accommodated. |
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| It also provides an opportunity to consider other alternative working patterns should there be problems in accommodating the work pattern outlined in the employee’s application. The employee can, if they want, bring with them a worker employed by the same employer as a companion. |
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| Within 14 days after the date of the meeting the employer must write to the employee to either agree to a new work pattern and a start date; or to provide clear business grounds as to why the application cannot be accepted and the reason why the grounds apply in the circumstances and set out the appeal procedure. |
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| All time periods can be extended where both the employer and the employee agree. Any extensions must be recorded in writing by the employer and copied to the employee. |
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| Can an employer refuse the request? |
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| There are various grounds on which an employer can lawfully refuse such a request. These are: |
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- Burden of additional costs;
- Detrimental effect on ability to meet customer demand;
- Inability to reorganise work among existing staff;
- Inability to recruit additional staff;
- Detrimental impact on quality;
- Detrimental impact on performance;
- Insufficiency of work during the periods the employee proposes to work;
- Planned structural changes.
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| If your employer turns down your request either initially or after an appeal hearing, they must state in their written notification of refusal a 'sufficient explanation' of why one or more of these business grounds (or grounds for a decision on appeal) apply. This statement is likely to be important to your case in any subsequent legal proceedings, whether under the new flexible working rights or other legal rights. |
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