Question: We have an employee who has been with us for 5 years. However, for the past 6 months’ her performance at work has been declining. When we informally asked her about this, she explained that she is struggling to get enough sleep because her elderly mother, who lives with her, is unwell and she has to care for her. Aside from the recent performance issues, the employee is exceptional and we do not want to lose her. What can we do to help?
Answer: These types of scenarios are cropping up more and more. Research by the Carers Trust has shown that one worker in eight is a carer, and this is set to increase in the future.
From the information you have given above, it seems you may be willing to consider a flexible working request from this employee. Employees with more than 26 weeks’ service are able to lodge a flexible working request, provided they have not made such a request in the previous 12 months. This is something that you could make the employee aware of, and many employers have flexible working policies which set out the process for making and dealing with any such requests. If you have such a policy, you could direct her to that. If her initial request cannot be accommodated for business reasons, then you could discuss alternatives with her and try and come up with a compromise. You can see out previous article on flexible working requests here.
The employee in question may find that reducing her hours allows her to manage her caring responsibilities and work much better. Obviously her income would drop and this would need to be made clear to her, but she may find that the drop in income allows her to claim a state benefit, and you could direct her to a benefits advisor or organisation who can assist and advise her about claiming relevant benefits.
If an emergency arises related to her mother (or another dependent), the employee has a right to take a reasonable period of unpaid time off to deal with that, and again this is something you may wish to make the employee aware of. Such time off will usually be for no more than one or two days to enable the employee to deal with the emergency and make any further arrangements for care. You may have a policy about taking time off for dependents, and you could direct the employee to that policy for further information.
The employee may find that she is not able to manage both work and caring for her mother, so she may decide to leave her job. The employee would need to provide her contractual notice, or you could agree for her to leave earlier than the end of her notice period if she requested this and you agreed to it. In those circumstances, perhaps you could say that you would be happy to re-employ the employee if she finds herself available to work again. However, the warning here is that you should not create any expectation, or give the impression that this is an absolute promise unless you are prepared for it to be binding. It would be prudent to make it clear that her re-employment would depend on the business situation at the time.
There is nothing to prevent you from going beyond what the legal requirements are, such as offering for paid time off to deal with an emergency rather than unpaid time off, but you should bear in mind that if you do this you can set a precedent and other employees may seek the same treatment. If you fail to provide the same treatment without justification, other employees could claim this is for a discriminatory reason (i.e. similar treatment was refused because of their gender, race, etc), and raise a claim in the Employment Tribunal.
If you manage to sort out flexible working with the employee, but her performance continues to decline despite having agreed to reduced hours, then you may need to commence a performance/capability management process to address this. I would recommend that you seek further advice at the time if you found that was the case.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).
Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.