Legal Opinion

Protecting the rights of carers

Adam Pennington, Senior Associate Solicitor, Stephensons Solicitors LLP

Working Families’, a charity advocating for flexible working arrangements, commissioned a poll earlier this month, which asked parents across the nation whether they felt that they had been treated less fairly because of their childcare responsibilities since the Covid-19 outbreak began in the UK. The poll showed that one in five parents’ answers were that they ‘strongly agree’ or ‘tend to agree’.

It would seem that Covid-19 has been used as a benchmark for many employers to give more flexibility for employees by allowing varied hours and home working in many cases. However, the poll results seem to suggest that some parents who have been required to work remotely do not feel that they are being treated fairly by their employers.

The charity has in the last month published a report, which, most notably, recommends that caring responsibility is added as a protected characteristic within the Equality Act 2010, to protect working parents from being treated differently because of their caring responsibilities, particularly during the pandemic.

The Prime Minister has suggested that if people cannot ‘go to work because they cannot get the childcare that they need, plainly they are impeded from going to work, and they must be defended and protected on that basis’. However, the law does not protect working parents from discrimination.

The Equality Act currently makes it illegal to treat someone less favourably based on their: age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex and/or sexual orientation.

At the moment, mothers can potentially claim that they are being treated unfairly by their employer by virtue of their sex and/or pregnancy or maternity, as these are considered as protected characteristics under the Equality Act. However, having caring responsibilities, in itself, is not considered to be a protected characteristic.

The report is calling on the government to change that, so that anybody with caring responsibilities, regardless of sex, can claim this under the Act.

The report is also recommending that employers should produce an annual public report on how many jobs are advertised on a part-time basis, with any flexible working options specified. It is also calling for employers to declare how many staff are recruited on a part-time and flexible basis.

These measures, if adopted, will more likely than not put more pressure on employers to take a more liberal and meaningful attitude to the idea of flexible working.

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