From 6 April 2024, employees will have a statutory right to a week’s unpaid leave to care for a dependant.
Who can take carer’s leave?
Carer’s leave will apply to employees and is intended to allow the individual to provide or arrange care for a dependant with a long-term care need.
The definition of “dependant” mirrors the definition used for the right to time off for dependants. This includes a:
• spouse
• civil partner
• child
• parent
• a person who lives in the same household as the employee (other than by reason of them being their employee, tenant, lodger or boarder) or
• the wider catch-all provision, of a person who reasonably relies on the employee for care.
Employees are entitled to carer’s leave from day one of their employment. As with other statutory leave entitlements, employers cannot penalise any employee choosing to take advantage of carer’s leave once it is brought into force. Dismissal of an employee for a reason connected with their taking carer’s leave will be automatically unfair. Employees are also entitled to return to the same job they were doing immediately before they took carer’s leave.
What will carer’s leave be used for?
A “long-term care need” is defined as:
• an illness or injury (either physical or mental) that requires or is likely to require care for more than three months
• a disability under the Equality Act 2010 or
• issues related to old age.
How much time can be taken?
The entitlement to one week’s leave is the maximum any employee is entitled to. Employers are not able to require an employee to evidence their entitlement to the leave.
How can carer’s leave be taken?
Flexibly, with the key procedural requirements as follows:
• Employees using the leave must take a minimum of half a working day at a time; a working day meaning the employee’s usual working pattern. There is no need for the leave to be used on consecutive days either. Employees could therefore take five separate days over a 12-month rolling period.
• Employees are required to provide notice, although this does not need to be in writing. The notice must include the fact that the employee is entitled to take carer’s leave and the day(s) or part of a day that will be taken.
• Employees will be required to give notice which is either twice the length of time being requested, or three days, whichever is the longest. It is open to employers to waive the notice requirement provided the employee is otherwise eligible to take carer’s leave.
Does an employer have to agree?
Employers are not able to deny an employee’s request for carer’s leave but can postpone it if they reasonably consider that the operation of the business would be unduly disrupted if the leave was approved.
If the employer does postpone the leave, they must provide a written counter notice within seven days of the request, explaining the reason for the postponement and the revised dates the leave can be taken on. The employee must be allowed to take the requested leave within a month of their original request.
What remedies does an employee have if these rights are not upheld?
An employee will be able to bring an employment tribunal claim if their employer has unreasonably postponed, prevented or attempted to prevent them from taking carer’s leave. A tribunal can make a declaration and award compensation. Compensation is subject to what the tribunal considers “just and equitable”, taking into account the employer’s behaviour and any consequential loss sustained by the employee.
Practical implications for employers
Employers should start to consider:
• updating or creating policies to inform employees of the new right and the logistics of requesting and taking it.
• creating a “self-certification” form for employees to complete, declaring that they meet the legal definition of a carer and will be using the leave in that capacity.
• introducing a system of record-keeping to track the number of days taken. Employers should also use this data to consider what further support they could provide for employees (for example, allowing additional unpaid time off if staff are using high levels of annual leave to provide intermittent care or help to dependants).
• informing people managers of the new right, the fact that any dismissal connected to using the leave will be automatically unfair, and the potential sensitivities around this topic. Some employees may not wish their colleagues to be aware they are taking time off for caring responsibilities, if they have not previously discussed this at work, or may not want to inform their manager of their need to take carer’s leave.
Should I enhance this right?
Some employers may wish to enhance these new rights by:
• offering pay for some or all of an employee’s entitlement or
• offering an increased amount of unpaid time off.
This might be part of a package of measures designed to attract and retain older workers.
Even if employers do not intend to offer paid leave, the new right may encourage employees to talk to their employer about any caring responsibilities they have and how they are managing those responsibilities alongside work, and this in turn may lead to more employers adopting carer policies.
For assistance with a carers policy or updating existing policies, please email nicola.goodridge@goodhr.co.uk or call +447917878384
