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Family & Carers: Employers Obligations

Payne, Marsh and Stilwell, solicitors in Southampton, have offered the Wessex LMCs and its constituents some generic Employment Law advice to be made available on this website.

Family & Carers: Changes in 2007

From 1 April 2007 the new Flexible Working Regulations provide that an employee is entitled to apply for a variation to his/her contract of employment to allow a flexible work pattern to enable him/her to care for an adult.

Those qualified to make a request are employees who have been working for more than 26 weeks for the employer and are:

  1. Spouses, civil partners or partners (unmarried, but living together as husband and wife or civil partners),
  2. near relatives (parents, adult children, siblings, aunts, uncles, grandparents or any adoptive, step- or in-law relationships of the same type), or
  3. dependent adults living at the same address as the employee.

The procedure

The procedure for requests is the same as for parents of children under six years old (or eighteen if disabled). 

Step 1:
The employee writes to the employer specifying the work pattern they wish to adopt and saying how they believe it will affect the business.

Step 2: 
The employer has 28 days in which to discuss the request then a further 14 days to provide a written decision. 

Step 3: 
The employee has 14 days to appeal.  The appeal meeting must be held within 14 days of the appeal.  The written decision must be given within a further 14 days.

Valid grounds for refusal

Refusal to allow a change to the employee’s work pattern must be based on any of eight business reasons:

  • the burden of additional costs
  • inability to reorganise work among staff
  • inability to recruit additional staff
  • detrimental effect on ability to meet customer demand
  • detrimental impact on quality
  • detrimental impact on performance
  • insufficiency of work during the periods the employee proposes to work
  • planned structural changes

Restricted frequency of application

An employee must wait 12 months from making an application before making another application to the same employer.

How long does the new arrangement last?

The employee has no automatic right to revert to the original working hours.  The employer would have to give its approval to a future change in working arrangements.

The problems…

If an application is made by someone under 3. above, an adult living at the same address, they do not have to be a relative or partner.  This will pose practical problems for employers who may want to confirm qualifying living arrangements at the time of an employee’s application and subsequently. 

It is also not set out by the regulations what level of care will justify a request: the intention behind not doing so was to avoid legal argument over such a definition.

Solutions…

The following could be considered as a means of providing practical solutions to these problems:

  • proof from a GP of the “carer’s” need for care,
  • written confirmation from the employee on a regular basis that the carer and caree still live at the same address, and
  • restrictions within employment contracts to stop an abuse of this right,

Do seek legal advice before implementing any changes to an employee’s employment terms and conditions..

We would advise that it is important for employers to have a clear written policy that is consistently applied to make employees aware of their rights, the procedures and how any applications will be dealt with.

Helpful sources:

http://www.acas.org.uk/

http://www.dti.gov.uk/

Tracey Rosell at Payne Marsh Stillwell: tr@pms.gs or tel. 023 8072 7165

 Of necessity this guidance can only be of a general nature and your own circumstances will almost certainly
 affect the right approach. Do not use this guidance without proper legal advice.

 Please refer to us as to what you need to do because of your specific situation.

 Payne Marsh Stillwell
 Solicitors Regulated By The Law Society

 
 
 

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Updated on Monday, 28 September 2020 1792 views