8th June 2022

Employers, show you care about your employees’ caring responsibilities and avoid potential claims

“Nobody cares how much you know, until they know how much you care,” as Theodore Roosevelt said. For the working carer, the profound truth of these words has to lie at the heart of the employer/employee relationship.

This week is Carers Week and I am humbled by the experiences both working carers and employers have shared. All too often, my workload comprises the worst case scenarios; advising on workplace disputes and Employment Tribunal representation. But what is clear from these experiences is, where there is a willingness and commitment by employers to support and remove or reduce the challenges faced by working carers they instil a degree of confidence in working carers, firstly, to recognise and be open about their carer status and, secondly, that they can balance their caring responsibilities with their work commitments. This, in turn, helps keep working carers in work and avoid the potential for conflict and claims to the Employment Tribunal.

Therefore, whilst there is a strong emotional or moral argument for employers supporting working carers in the workplace, there is an equally strong financial case. Although we await the introduction of statutory carers leave “when parliamentary time allows”, there are currently a number of statutory rights available to carers including: flexible working (potentially to become a ‘day one’ right); time off for dependants; and parental leave. Where working carers are prevented from exercising their right to leave (or there are attempts to prevent the taking of leave) or they are subjected to a detriment, or dismissed, for taking leave (or seeking to take it), they can complain to the Employment Tribunal. Defending claims cost employers money.

However, discrimination claims can be the costliest; an Employment Tribunal can award uncapped compensation for injury to feelings and financial losses. What many employers find surprising is that the Equality Act 2010 protects individuals ‘associated’ with another with a protected characteristic from unlawful discrimination. For example, let’s imagine an employer refuses to offer a job which involves a lot of travelling to a candidate whom it knows to have caring responsibilities for a disabled child. The employer assumes that the candidate cannot travel. This is direct discrimination on the grounds of the protected characteristic of disability because the candidate is associated with a disabled child. Associative discrimination also extends to indirect discrimination and harassment claims.

As someone who brings and defends such claims for clients, I can offer the following advice to employers:

  1. Have a clear definition of what it means to be a carer, one that recognises that every experience is different. Use this to help identify carers in the workplace, understand their circumstances and identify the support they need.
  2. Perhaps obvious, but really understand your obligations as an employer to ensure you fulfil your legal obligations.
  3. Ignorance is bliss would be a misnomer when it comes to a working carer’s caring responsibilities. Some employers have a fear of knowing too much about their employees’ personal lives either because of the implications under data protection or knowledge equates to liability. However, it is possible to securely and properly collect, use and store personal data and sensitive personal data and an employer must do all it can reasonably be expected to do to find out about any disability (or substantial disadvantage). Create a culture where working carers feel comfortable sharing details about their personal lives.
  4. Do not rush to say no when support is requested. Whether you have received a request to work flexibility (because they need to travel to provide care) or to accept higher incidents of lateness from a working carer (because their caring responsibilities disrupts their sleep), remember to weigh up the detrimental impact on the working carer against the business, rather than assume support cannot or should not be given.
  5. While it is good practice to have a carers policy, it means nothing if it is not communicated, understood and staff receive regular training on its application.

If you have any questions about employers’ legal rights and obligations to their working carers contact Blackadders’ Employment Team working in Glasgow, Edinburgh, Perth, Dundee and Aberdeen.

Donna Reynolds employment law partner

Donna Reynolds, Partner
Accredited by the Law Society of Scotland as a Specialist in Employment Law & Discrimination Law
@EmpLawyerDonna

www.blackadders.co.uk

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