Q&A: new flexible working rights for carers

What are the new rights for working carers?
Carers who have been working for an employer for at least 26 weeks now have the right to request a change in their contracts of employment to help them with their caring responsibilities. The legislation lists the types of change that can be requested, for example a reduction in work, a change in work patterns or home-working.Carers of children aged under six, and carers of disabled children, have had these rights since 2003.

Am I a carer?
Unfortunately, you are not a carer for this purpose merely because you care for someone. You have to be a carer of a particular type to take advantage of the right to request flexible working. If you are living at the same address as the adult being cared for, it is simple: you are a carer for this purpose.

Otherwise, you must have a particular relationship with the person being cared for, namely be their spouse, civil partner or relative. A “relative” is quite widely defined for these purposes and extends as far, for example, as step-brothers and sisters and aunts and uncles, but not as far as cousins.

What’s the point of a right just to make a request?
It is true that your employer does not have to agree the request. However, if the experiences of those who have requested flexible working arrangements in order to care for children are anything to go by, there will be a high agreement rate. Early indications are that of the one million child carers who have requested flexible working arrangements, 80% of requests have been agreed straight away and 10% agreed with modifications.

Are there many formalities?
Yes, there are some although they are not complex. The easiest way to ensure compliance is to use the standard application form produced by the government.
Additionally, your employer must hold a meeting with you to discuss your application within 28 days of it having been made. You have the right to be accompanied to this meeting. Normally, within 14 days of the meeting your employer must give you written notice of its decision on your application.

Can my employer just ignore my request?
No, the employer must give “serious consideration” to the request. Additionally, there are a limited number of grounds upon which a request can be refused, all of which require a genuine business reason for refusing the request.

If your application is refused, you are entitled to a written explanation and an “appeal meeting”, following which your request must be reconsidered. The government has produced a standard form for requesting an appeal meeting.

Do agency workers have equal rights?
Unfortunately, they do not. Agency workers are excluded from the scheme.

Can I go back to my old way of working whenever I want?
No. It is important to appreciate that, if a formal flexible working request is agreed, that will embodied in your contract of employment. You cannot then just decide that you want to switch back to your old contract – your employer will need to agree the change (unless the contract itself allows you to switch back). For this reason, it is often a good idea to try and agree a trial run of new working arrangements before formalising them in a new contract.

Ed Mitchell is a solicitor, Community Care’s legal expert and editor of Social Care Law Today.

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