Elder care and employment: overview
Alice Crabb and Sarah-Marie Williams of Clyde & Co LLP begin a series of articles on elder care and employment with an overview that looks at the potential impact of elder care issues on employers, the rights of employees who have elder care responsibilities and the steps that employers can take to address the issues that can arise as a result of employees' elder care responsibilities.
Introduction
Elder care is the care of elderly dependants. This may involve the care of a parent, partner, relative or friend who is ill, disabled or injured. With an ageing population, the number of employees with elder care obligations is increasing.
According to data collated by the Office for National Statistics,
there are approximately six million unpaid carers in the
Unlike the requirement to care for children, which is usually predictable, a requirement to care for elderly dependants can arise in an abrupt and unpredictable way. Responsibilities often take place away from the carer's home and are more likely to increase over time as the condition of the person for whom the carer cares deteriorates.
Why is it an issue for employers?
Carers often face difficulties in balancing their caring and employment obligations. Many carers will also be juggling childcare responsibilities.
The pressures of the obligations placed on carers can lead to their increased absenteeism and illness and reduced performance, productivity and morale. This will need to be managed appropriately by their employer with regard to both its business needs and the employee's situation, where possible. For some carers, the difficulties of balancing caring duties and employment obligations ultimately lead to their leaving the workforce earlier than they otherwise would. As a result, their employer may lose a highly skilled employee whom it would like to have retained.
Rights for carers
There are various employment rights to which employee carers may be entitled.
Flexible working: Under ss.80F to 80I of the Employment Rights Act 1996, qualifying employees have the right to request a flexible pattern of work, provided that they have worked continuously for their employer for at least 26 weeks. Only one request may be made in any 12-month period.
In relation to elder care, the right applies to carers who care, or expect to care, for an adult who is a spouse, partner or relative or, if not related, someone who lives with them. The employer is under a statutory obligation to consider the application for flexible working. However, as the right is only a "right to request" as opposed to an entitlement to work flexibly, the employer can reject the request on the basis of one or more of the business reasons set out in s.80G of the Act. In any event, the employer must follow the statutory process set out in the Act and the Flexible Working (Procedural Requirements) Regulations 2002 (SI 2002/3207) when it deals with a request for flexible working. This includes meeting with the employee to discuss the request.
On 16 May 2011, the Government published its Consultation on modern workplaces: i) flexible parental leave ii) flexible working iii) Working Time Regulations iv) equal pay (PDF format, 826K) (on the BIS website), which makes proposals for an extension of the right to request flexible working to all employees who have worked continuously for 26 weeks. The Government has made the following proposals that are likely to impact on employers of carers:
- The existing statutory process for considering requests will be replaced by an obligation to consider requests "reasonably". A new statutory code of practice will be introduced to provide employers with guidance on considering requests.
- Additional requests for flexible working should be allowed within 12 months if the original request was for a period of temporary flexible working.
- The Government will consider approaches whereby employers can take into account employees' individual circumstances in deciding between competing requests.
The consultation closed on 8 August 2011 and the Government's response is expected in late autumn 2011.
See the Right to request flexible working section of the XpertHR employment law manual for more details of the flexible working provisions.
Time off for dependants: Under ss.57A and 57B of the Employment Rights Act 1996, all employees, irrespective of their length of service, have the right to reasonable unpaid time off work to deal with emergencies that involve a dependant.
In the context of elder care, a dependant includes a partner, parent or anyone living in the household as a member of the family (other than as an employee, tenant, lodger or boarder). It also includes anyone who reasonably relies on the employee for help in an emergency, such as an elderly neighbour or friend.
Time off can be taken to:
- help when a dependant falls ill, has been assaulted or is involved in an accident;
- make longer-term care arrangements for a dependant who is ill or injured; or
- deal with an unexpected disruption or breakdown in care arrangements for a dependant, for example in the event that the primary carer is unavailable.
There is no specified statutory limit to the amount of time off that an employee is entitled to take, but one or two days is generally sufficient to make the appropriate arrangements for care. While the circumstances of the particular carer should be looked at on a case-by-case basis, the right to time off is intended to cover genuine emergencies and unforeseen problems as opposed to longer-term care arrangements. However, there is no limit to the number of times that an employee may exercise the right to time off. See Dependants in the Time off work section of the XpertHR employment law manual for more details.
Protection from discrimination by association: Employers must also be mindful of the discrimination provisions in the Equality Act 2010. The definition of direct discrimination in s.13 of the Act extends protection against discrimination to discrimination by association. Where an employer treats an employee less favourably because of the age or disability of someone with whom he or she associates (such as an elderly person for whom he or she cares), this will amount to discrimination. For example, if an employer allows flexible working for employees without elderly relatives, but does not because the employee has an elderly relative, this is likely to amount to associative discrimination. The Act also provides protection against harassment by association.
What can employers do?
By taking an approach that promotes openness in the workplace regarding elder care, employers can support employees who have elder care responsibilities.
Flexible working: Employers may be able to encourage employees with care obligations to remain in the workplace by considering flexible working arrangements. Flexible measures include agreeing reduced and part-time hours, job-sharing arrangements, additional paid or unpaid leave to attend to care duties, and career breaks.
Advice services/support groups: To encourage employees to discuss their work-life difficulties openly and seek support within the workplace before their performance is affected, employers may consider introducing an advisory or support service. Peer-to-peer carer groups within an organisation can assist employee carers to seek guidance and support from colleagues who are in a similar position. Employers may also wish to consider using occupational health services and employee assistance programmes to provide support.
The benefits to employers in introducing support for employees include better performance, increased motivation and the retention of key employees. Further, this will give the employer a better idea of the elder care issues in its organisation and this is likely to enhance its reputation as an employer that offers a work-life balance.
Performance issues: The tiredness and stress of maintaining the balance between work and care can place great physical and emotional strain on carers, which, as mentioned above, can result in lower productivity and performance and increased absenteeism. Where poor performance issues arise in respect of a carer, the employer should first seek to raise those issues with him or her on an informal basis to try to identify the underlying reason for the unexplained drop in performance and productivity. It may be possible for the employer to agree a way forward with the employee that works for both parties and restores performance and productivity to an acceptable standard (for example, by introducing flexible working). However, if performance issues persist, or are sufficiently serious to warrant further action, it may be necessary for the employer to invoke its formal capability or disciplinary procedure, as appropriate.
Further information
For further information on elder care and the workplace see the Employers for carers and My family care websites.
Next week's topic of the week article will be a case study around elder care and employment issues and will be published on 12 September.
Alice Crabb (Alice.Crabb@clydeco.com) is a trainee solicitor and Sarah-Marie Williams (Sarah-Marie.Williams@clydeco.com) is a legal director at Clyde & Co LLP.
Further information on Clyde & Co LLP can be accessed at www.clydeco.com.
