flexible working requests: an ever-changing landscape
The care sector is one where employees may, for a variety of
reasons, want to work on a flexible basis. Flexible working does
not just mean part-time working and can take a variety of forms,
like flexi time, term time working, and annualised hours. For many
operators of care homes, given the general requirements of staff
ratios, flexible working arrangements requested by a member of
staff can appear a complete headache. However, there is currently a
right for certain staff to request flexible working and operators
of care homes, like other employers, must consider such a request
properly.
Currently, the right to request flexible working applies to
parents, adopters, guardians or foster-carers of all children under
17 (or under 18 for a disabled child) and, since 6 April 2007, to
carers of dependant adults.
The definition of a 'carer' covers any employee who is, or
expects to be, caring for an adult who is married to, or is the
partner of the employee; or is a near 'relative' of the employee;
or falls into neither category, but lives at the same address as
the employee. The definition of 'relative' includes parents,
parents-in-law, an adult child, an adopted adult child, siblings,
uncles, aunts or grandparents and step relatives.
There is no legal right for an employee to work flexibly.
However they can request to work this way. The operator of a care
home, as the employer, does not have to agree, but there are
specified grounds on which refusal can be justified:
- the operator would incur additional costs
- there would be a detrimental effect on the operator's ability
to meet client demand
- the operator would not be able to reorganise work among
existing staff
- the operator would not be able to recruit any additional staff
necessary
- there would be a detrimental impact on quality of services
delivered to clients
- there would be a detrimental impact on the operator's
performance
- there would not be enough work available during the periods the
employee proposes to work
- the operator has already planned structural changes that mean
the employee's request cannot be accommodated.
Operators and employees must follow certain procedures when
making or dealing with flexible requests and failure to do so can
result in claims being made to an Employment Tribunal.
So, even if your gut reaction to a request for flexible working
is that it is just not feasible, you must consider the request
fully.
If you genuinely refuse a request on one of the specified
grounds, and can clearly show this to be the case, then the risks
of a successful claim being brought against you should be minimal.
However, clear records need to be kept to evidence that the proper
procedures have been followed.
