Employment law outlook

Citation

Pitt, M. (2007), "Employment law outlook", Human Resource Management International Digest, Vol. 15 No. 5. https://doi.org/10.1108/hrmid.2007.04415eab.001

Employment law outlook

It is now more than three years since working parents of children aged under six or disabled children aged under 18 were given the right to apply to work flexibly, with a duty on their employers to consider such requests seriously. It was introduced as part of the UK government’s commitment to help parents to strike a balance between the commitments of their working life and family life.

The Employment Rights Act does not provide an automatic right to work flexibly, but aims to encourage working parents and their employers to investigate thoroughly whether an agreement can be found without harming the employer’s business. Employees have to think carefully about the working pattern they want, when they make the application, and there is a procedure for the employer to follow to ensure that the request is considered as seriously as the law says it should be.

But what happens if an employer turns down the request? There is, of course, the employment tribunal, which can award compensation or order that the request is reconsidered. It cannot, however, make the requested changes to the terms and conditions of employment.

In addition, a woman may be able to use the provisions of the Sex Discrimination Act (rather than the Employment Rights Act) to claim she is the victim of unlawful indirect discrimination on the grounds that women, rather than men, are more likely to have child-care responsibilities, so the failure to agree to accommodate those needs will disadvantage a greater proportion of women.

This law will not usually be of use to men who want to change their working pattern because of child-care responsibilities. An employer who turned down a request for flexible working from a man, when a request from a woman would have been treated more favorably, could be guilty of direct discrimination. But men will probably have a better chance of success by claiming their rights under the flexible-working provisions have been breached.

Employers should bear in mind, when getting requests for flexible working, that they risk a claim of direct discrimination if they do not treat women and men equally.

To be eligible for the right to request flexible working, an employee has to be the parent, guardian, adopter or foster parent of the child (or the partner or spouse of that person); to expect to have responsibility for the child’s upbringing; and to have been in the job for at least 26 weeks of continuous service.

Meanwhile, if your workplace has more than a couple of dozen employees, the chances are that at least one of your colleagues will be trying to juggle job responsibilities with caring for an elderly, sick or injured relative. They may, for example, be involved in the long-term care of someone who is terminally ill, or simply looking after a person who has had an accident and will be better in a few weeks.

Carers UK reports that half of Britain’s six million carers are also working. There are likely to be nine million carers by 2036. Three in five Britons will end up caring for someone at some point in their lives. And the chances of a person now aged 24 becoming a carer will have trebled by the time they are 59.

The main reasons are Britain’s ageing population and the trend towards smaller families and more people living alone.

The government feared that, if nothing was done, more and more carers would simply drop out of the labor market. It therefore decided to give them more rights to change their working patterns to fit around their caring responsibilities.

Carers can now ask their employers for flexible working under the Work and Families Act 2006. Employers will not be compelled to grant the request. But they will have to consider it seriously and have specific business grounds for turning it down. In this respect, the right is similar to that which already applies to employees with young or disabled children.

The act applies to employees caring for their spouse, partner, civil partner, “near relative” or someone who lives at the same address. “Near relative” is a wide category that covers mother, father, adopter, guardian, parent-in-law, son, son-in-law, daughter, daughter-in-law, brother, brother-in-law, sister, sister-in-law, uncle, aunt or grandparent.

The new right is certain to affect employees’ expectations. As a result, many employers will come to feel that they must rethink the issue of their working patterns.

This should not be done grudgingly. After all, there is a strong business case for supporting employees with caring responsibilities because it does not make sense to risk losing skilled staff.

Mike Pitt Employment Law Partner at UK solicitors Pearson Hinchliffe. He can be contacted by e-mailing mpitt@pearson-hinchlif.co