Back Injuries Common in Carers
Carers are those who provide unpaid care to family members, friends, partners or children who are unable to look after themselves for reasons such as illness, injury, disability or age. The service provided by carers is widely recognised as highly valuable.
A significant proportion of carers in the UK are in employment. According to the charity Employers for Carers, one in seven of employees are also carers.
Having to balance the demands of a working life in addition to care giving, and life beyond work and care, places many carers in a difficult position. In many cases one can envisage, carers will find that their employment duties are difficult or impossible to fulfil due to care giving commitments. Health Secretary, Jeremy Hunt recently highlighted the plight of carers in employment, as reported by the BBC in the article ‘Carers should get flexible hours’.
In the article Mr Hunt was reported as having stated that helping more carers stay in work was an economic necessity and also that not enough employers offer flexible working hours. He encouraged more to do so as good business sense.
In considering the question of what more might be done to help carers in employment one might as a starting point consider the legislation dealing with arrangements for flexible working hours for carers.
The current law makes no entitlement to or even a presumption in favour of allowing flexible working hours for carers. There is only a right set out in the Employment Rights Act 1996 as amended for carers to request changes to their contractual working hours by making an application to the employer.
To qualify under the right to request changes the employee must have been in continuous employment with the employer for at least 26 weeks and not have applied under the right within the past 12 months. Agency workers do not qualify.
The person receiving the care must either be married to, be a partner or civil partner of the employee, a near relative of or live at the same address as the employee.
The employer has only the duty to consider the application in accordance with the statutory procedure. Provided the employer follows the procedure in reaching a decision to reject the application on the basis that one or more of the reasons listed in the Act applies, the decision cannot be challenged.
The listed reasons are mostly to do with negative effect on the business. There is no requirement that the circumstances of the employee or needs of the recipient of the care be taken into consideration. It is significant to note that the employer’s decision need not be a reasonable one, provided it was not based on incorrect facts or after a failure to follow the statutory procedure.
Where an employee can establish that the employer has based its decision on incorrect facts or there has been a failure to follow the statutory procedure an award of compensation can be made.
Compensation can be no higher than the equivalent of eight weeks’ of the employee’s pay, which is capped at a maximum of £450 per week, meaning that an employee cannot be awarded any higher amount than £3,600. There is no power enabling an order that changes to the contractual hours should be made.
It can be argued that the current legislative regime on flexible working arrangements gives minimal support to carers in employment and creates limited incentive for employers to grant requests and that the legislation should be revised to define situations where an employer is obliged to grant requests, for example where an employee who is also a care giver is in need of flexible working hours.
The Government has recently legislated to widen the statutory right to request changes to all employees, which is due to come into force in April 2014. However, the new law does not go as far as granting courts and tribunals jurisdiction to adjudicate on whether an employee should be allowed flexible working hours where a statutory request has been refused.
Carers juggling the demands of employment and care giving will for now continue to have to rely on their persuasiveness in making their requests for flexible working hours and the receptiveness of employers to those arguments in order to achieve those arrangements.
Roberts Jackson recognise that carers who are in employment will from time to time suffer from injuries, illnesses or medical conditions giving rise to a claim and have the specialist knowledge necessary to deal with those claims in a compassionate and effective manner.