Right to request flexible working extended to adult carers

In December 2006, the government submitted regulations to parliament extending the right to request flexible working to carers of adults. To date, this right is available only to parents of young and disabled children. The new legislation will come into force in April 2007. The move has been largely welcomed by both employer groups and trade unions.

On 14 December 2006, the Employment Relations Minister at the Department of Trade and Industry (DTI), Jim Fitzpatrick MP, laid the Flexible Working (Eligibility, Complaints and Remedies) (Amendment) Regulations 2006 before parliament for formal approval.

The regulations, brought forward under the Work and Families Act 2006 (131Kb PDF) (UK0609039I), amend existing provisions dating from 2002 (UK0304104F) and widen the scope of the statutory right for employees to request flexible working arrangements from their employer. Until now, this right has applied to carers of children under six or disabled children under 18, but will shortly be extended to employees who care for certain adults.

Key provisions of new regulations

From 6 April 2007, employees will have the right to request flexible working if they have had at least 26 weeks’ continuous employment with their employer and they look after a person in need of care who is either:

  • married to, or the partner or civil partner of, the employee;
  • a relative of the employee;
  • living at the same address as the employee.

‘Partner’ means the other member of a heterosexual couple who are not married but living together as if they were husband and wife, or of a same sex couple who are not civil partners but are living together as if they were. ‘Relative’ means a mother, father, adopter, guardian, parent-in-law, son, son-in-law, daughter, daughter-in-law, brother, brother-in-law, sister, sister-in-law, uncle, aunt or grandparent. Step-relatives and half-blood relatives are also included, as are adoptive relationships.

Under the legislation, the applicant is not required to demonstrate a particular level of care, nor is the employer entitled to ask for proof of caring responsibility. The employer’s decision whether to accede to a request for flexible working is to be made on business grounds and without regard to the employee’s personal circumstances. However, the DTI’s guidance on the legislation includes illustrations of activities that might constitute ‘caring’. These extend beyond help with personal care and mobility to providing emotional support, doing practical household tasks and helping with financial matters or paperwork.

Views of the social partners

Overall, the new legislation has been received positively by employer groups and trade unions.

The Confederation of British Industry (CBI) accepts that the right to request flexible working has been ‘a success’ to date and that extending the right to carers is ‘appropriate’. It expressed only minor concerns about the legislation’s potential impact, arguing that ‘for some companies, there is a limit to the amount of flexibility they can offer, meaning that the requests employers receive in the future may be more difficult to accept’.

A 2006 survey by the CBI (UK0610049I) showed that 94% of requests for flexible working for childcare purposes had been accepted by employers – 62% were accepted formally, 20% informally and 12% resulted in a compromise – while 6% of the requests were declined. Some 43% of employers reported that the legislation had had no impact on their organisation, compared with 52% of those surveyed in 2005. The proportion reporting a negative impact fell from 26% in 2005 to 20% in 2006, while 29% of respondents reported that the legislation had had a small positive impact, compared with 20% in 2005.

While welcoming the extension of the right to request flexible working, the Trades Union Congress (TUC) favours a more wide-ranging ‘life-course’ approach to flexible working that takes account of the changing needs and choices of workers over the lifetime.

Report on flexible working

A 2006 research report commissioned by the TUC, Out of time: why Britain needs a new approach to working-time flexibility, states that: ‘Large numbers of workers are missing out on flexible working, while many employers are not fully taking advantage of the potential of flexible working practices to enhance their competitiveness and growth.’ Its authors argue that, while the right to request flexible working has had ‘some positive impact’, the ‘policy focus on (a subset of) employees with caring responsibilities has missed the point that a more effective and individual right for all employees to request flexible work could play an important role in securing a number of policy objectives which extend beyond the work–family agenda’. The TUC report makes the case that the right to request flexible work should be extended to all workers and that it requires a stronger regulatory framework.

Mark Hall, IRRU, University of Warwick, UK

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