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Flexible working hours and a carer's rights

Ensure the practice does not discriminate against staff with disabled dependents, warns Claire Brook.

A ruling last year by the European Court of Justice (ECJ) could have important ramifications for GP employers when dealing with requests from carers to work flexible hours.

The ECJ agreed in July 2008 that the existing law on disability discrimination should be extended to protect carers who do not have a disability but have an association with a disabled person.

A case in point
The case concerned a legal secretary, Mrs Sharon Coleman, who worked for a London law firm and was the primary carer for her young disabled son (born with bronchomalacia and congenital laryngomalacia). Mrs Coleman argued that her employer had treated her unfairly and created a hostile working environment, on the basis of her having a disabled child.

Crucially, Mrs Coleman's employer refused her request for the same flexible working hours as other colleagues with children. She was called 'lazy' for asking for time off to care for her son.

The ECJ agreed that Mrs Coleman was protected from disability discrimination as a carer who had an association with a disabled person. This judgment has wide-reaching potential implications for all employers. It is vital for GP practices to be aware of it because compensation is unlimited for successful discrimination claims.

Statutory procedure
Ensure that your practice complies with the statutory procedure to request flexible working. While there is no legal obligation on an employer to accept such requests, there is a duty to follow the statutory procedure and consider requests fairly.

The 'right to request procedure' involves the employee first making a written application asking to be allowed to work flexible hours. The employer must then arrange to hold a meeting with the employee within 28 days of the request being made.

After the meeting the employer must give full consideration to the request and make a decision as to whether to accept it. The employer must then provide the employee with notice of the decision in writing within 14 days of the meeting.

There are a number of prescribed (laid down) reasons why a request may be rejected. Finally, the employee has a right to appeal against the decision if they are unhappy with it.

The key to avoiding a costly claim is to ensure your surgery maintains an up-to-date flexible working policy that is in line with the statutory procedure.

  • Mrs Brook is an associate in the employment team at solicitors Aaron & Partners in Chester

Flexible working
Request procedure

  • Employee makes written request for flexible working.
  • Employer must arrange a meeting within 28 days of request.
  • Employer must provide their written decision within 14 days of the meeting.
  • Employee has the right to appeal.

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