52% of Carers are Refused Flexible Working – the Law Needs to Change

A ‘What’s New’ post contributed by David Laurence of the Disability Law Service.

Disabled people are entitled to have reasonable adjustments made in their workplace conditions in order to ensure that they are able to work and can do so effectively. This right is provided for under the Equality Act 2010 section 20.

In 2014 the Court of Appeal decided that this right is not available to carers[1]. In that case the mother of a 17 year old disabled young person was unable to seek a reasonable adjustment to her place of work in order that she could continue in work and fulfill her caring role.

Under current law, a carer can only request flexible working.[2] This right is not good enough, particularly when compared with the right to reasonable adjustments.

This is because there is a legal duty on an employer to make reasonable adjustments but there is no duty on an employer to agree a reasonable request for flexible working.

What is more, the Employment Appeal Tribunal has held[3] that its role is not to ‘judge the reasonableness of an employer’s refusal to provide flexible working”.  So, when considering a carer’s request for flexible working under the relevant law,[4] it is basically up to the employer to decide what is reasonable. This is completely unacceptable and is not the approach adopted by the Equality Act 2010 when dealing with not dissimilar requests by disabled people for reasonable adjustments.

In a 2017 survey by the Disability Law Service[5] we discovered that of those carers who apply for flexible working, a shocking 52% have had their request for flexible working refused. Additionally, 72% of those responding to the survey said either that they want to work or they want to work more, and would do so if they could work flexibly.

Yet the weakness of the right to apply for flexible working stands in their way. A simple amendment to the Equality Act 2010 could resolve this by permitting carers the same rights to reasonable adjustments as are currently given to disabled people.

This would send a powerful message to both carers and the business community to the effect that a carer is to be accommodated in the workplace in the same way as a disabled person. This would be suitable recognition of the substantial contribution to society that carers make, whilst making it easier for carers to remain in fulfilling employment, thereby reducing the need for reliance on benefits. Moreover, it would provide a framework for the retention by business of the talent that carers provide, with the savings in costs by business that this would promote.

David Laurence is the Partnerships Manager for the Disability Law Service. If you would like further information please contact David – david@dls.org.uk.

[1] Hainsworth v Ministry of Defence [2014] EWCA Civ 763.
[2] Employment Rights Act 1996 section 80F and the Flexible Working Regulations 2014 SI 1398.
[3] Mr Justice Kerr, Singh v Penine Care NHS Foundation Trust [2014] UKEAT/0027/16/DA.
[4] Employment Rights Act 1996 section 80F and the Flexible Working Regulations 2014 SI 1398.
[5] The online survey was conducted in December 2017 and January 2018. There were 132 respondents.