By Mandy Ramsey, Carer Wellbeing Facilitator, Gateshead Carers

Even though the funding for the GCA Working Carers project ended some time ago, we continue to support many working carers who struggle to balance working and caring. Sometimes the issues are the same as for any other carer and may be about navigating health and social care, sometimes the issues are related to their employment, or both. At GCA we can help working carers find out about their carer rights at work but not give specialist employment law advice.

For working carers, staying in work and caring often depends on having flexible working arrangements. Flexible working can be a variety of different arrangements that works for the employee and the employer

I’ve been really interested in how homeworking due to the COVID19 pandemic has affected working carers. Many that I’ve spoken to have hugely benefitted from this opportunity and want to continue with working from home as much possible. Some reported that they were on the brink of sick absence due to stress or were even considering leaving work, but working from home in the last 18 months has enabled them to juggle working and caring and reduce high levels of stress.

The government recently announced plans to consult on the right to request flexible working from day one of employment, rather than after 6 months employment as it currently is. Being able to request flexible working from day one is good news, but employees will still only have the right to request, but not the right to be granted, flexible working arrangements.

Guidance can be found on the ACAS website

I recently attended a webinar about making a successful request for flexible working by the Working Families legal advice team. They’re an organisation that supports working parents and carers and provide employment law advice. You can access their guidance and resources on their webpage, submit a request for advice online, and access their free helpline

Their top tips for making a successful request are on their website, but their main messages are to aim high and be prepared to compromise, and to be well prepared in advance as, unless your employer allows you to, you can’t make another request for a year. There is also no right to appeal an employer’s refusal to grant a flexible working request.

Although anyone can ask for flexible working and you don’t need to give a reason, Working Families say that if your request is for child care or caring responsibilities then state this. This could be important in cases of indirect sex discrimination.

You can see why it’s so important to be prepared and in an ideal world all employees would have a working pattern to suit their work/life balance, but it’s not always possible to have a successful request and there’s more guidance from ACAS and Working Families websites about what to do if your request is refused, and how to raise a grievance.

There may be genuine reasons why you can’t have what you’ve requested, but it’s important to know what to do if your request isn’t successful and you think the request hasn’t been treated fairly (if your request was not properly considered, your employer acted unreasonably, or you’ve been treated unfairly following your request) or you believe that you’ve been discriminated against, or both.

It’s a bit of a leap from talking about making a request for flexible working in generalised terms to discrimination. The point of sharing the following information is to illustrate the importance of getting specialist employment law advice, and Working Families recent involvement in an indirect discrimination case of a working parent carer that was successful at an Employment Appeal Tribunal. The details are on their website and you can read the full details here. I was really interested in reading the full version and how the original tribunal got it so wrong!

An interesting point is that in order to determine discrimination, tribunals will rely on statistical information.

In another case of indirect sex discrimination and indirect (associative) discrimination on the grounds of disability concerning a working carer (Follows v Nationwide), the tribunal relied on evidence from Carers UK 2019; ‘We accepted that this shows a significant disparate effect relating to sex. We also accepted the findings within the Carers UK briefing that services for carers are inflexible and that carers are often at the disadvantage in obtaining and keeping employment’ (para 108 of the findings)

You can read the full judgement here. This is 39 pages long and goes to show the complexity of the considerations and employment law. Working Families stated that even though this case was successful it’s not binding in law.

GCA can’t give employment law advice or comment on individual cases.

If you’re having difficulties navigating requesting flexible working visit the Working Families website, contact ACAS for impartial advice (free helpline 0300 123 1100) and get support from your trade union if you’re a member.  Please get specialist legal advice if you think you’ve been treated unfairly or have been discriminated against.