A new statutory entitlement to Carer's Leave
The Act creates a new statutory unpaid leave entitlement for employees who are caring for a dependant with a long-term care need. It is estimated that this will give 2.4 million unpaid carers in the UK leave from their employment to assist with their caring responsibilities.
Who is eligible to use Carer's leave?
The leave will be exercisable by employees from day one of employment. The person being cared for must be the spouse, civil partner, child, or parent of the employee, live in the same household as the employee, and reasonably rely on the employee to provide or arrange care. They also must have a long-term care need which is defined as a long-term illness or injury (which can be physical or mental) that requires care for more than three months, a disability as defined by the Equality Act 2010 or issues relating to old age. The employee cannot be required to supply to the employer any evidence in requesting the leave.
The leave could be taken flexibly in a block of five days or in individual or half-days to suit the carer's caring responsibilities. The employee cannot be required to supply to the employer any evidence in requesting the leave.
When will statutory carer's leave become available and how much time off will be allowed?
While the legislation has now been enacted, the implementation date of the Act in England, Scotland and Wales is yet to be confirmed. It has been reported that the earliest it will come into force is April 2024 as it is likely that Regulations will be introduced by the Government to implement the new entitlement.
Will employers be able to refuse a request for carer's leave?
It will not be possible to refuse a leave request, but the Regulations may set out circumstances in which the employer could postpose the leave. However, if carer's leave has been disproportionately postposed or prevented, then the employee may be able to bring a claim in the Employment Tribunal.
In some circumstances an employee may be able to rely on protection from discrimination by association if the person they are caring for is a disabled person under the Equality Act 2010. Employees with two years' service requesting and/or taking carer's leave will have the same protections from dismissal or detriment as they would if they had taken other types of family-related leave.
Prior to implementation of the Act, do carer's currently have any right to time off work to carry out their caring responsibilities?
During the period before the Act is implemented, carers can still make use of some existing statutory rights. For a short-term difficulty, carers may be able to rely on taking time off to look after dependents. This is a right to unpaid time off in an emergency, with the amount of time off being what is reasonable in the circumstances.
For longer term issues carers may be able to make a request to work flexibly. Currently an employee needs to have 26 weeks continuous employment in order to make such a request, and not have made another request within the previous 12 months. However, the right is to make the request, there is no entitlement to flexible working although the employer has to deal with any request reasonably and there are limited grounds for refusal.
Where the carer is looking after their child under 18 years of age then they can also request parental leave. To be eligible, the employee must have worked for the employer for a year or more and have parental responsibility for the child. Each parent can take up to 18 weeks unpaid leave for each child in blocks of a week at a time, up to a maximum of four weeks a year for each child. Parental leave can be taken more flexibly if the employee is in receipt of Disability Living Allowance or Personal Independence Payment for the child.
What else can employers do to support carer's rights?
Once implemented, this new type of statutory carer's leave is intended to be the minimum that an employer must provide to employees. Employers therefore can provide greater entitlements if they wish.
Employers can also provide practical support can be offered via employment policies and practices. This can include nominating a key contact in the workplace or setting up an internal carers group or forum in larger organisations. Developing a specific policy for carers setting out the ways in which the organisation aims to help will also support carers.
All employers, irrespective of the size of business, can sit down with an employee with caring responsibilities and just ask what they can do to support them. They can then discuss what can and cannot be done to help the employee successfully combine work and caring. It will not always be a matter of giving the individual time off. For some, knowing that they are allowed to leave mobile phones on in meetings in case of emergencies will help reduce stress, as could allowing the individual breaks to telephone the person they care for to check they are okay.
Employers may also want to consider providing information on local carer services or forge links with them. In the current economic climate, it is important to retain skilled workers rather than recruit and retrain new staff. Providing support in the workplace for carers can decrease staff turnover, reduce stress for the employee and improve job performance and satisfaction. Employers can find assistance from resources such as EFC (employersforcarers.org).
If you'd like to speak with us, please do not hesitate to contact our employment team.
This article has been amended since its publication in the Journal to reflect the changes to the law.
