The Carer’s Leave Act will give employees a statutory right to a week’s unpaid leave in order to care for a dependant. We provide a summary of what to expect and the implications of this, below.
The Carer’s Leave Act 2023 became law on 24 May 2023. However, further regulations from the government setting out precisely how the entitlement will work are required.
Who can take carer’s leave?
Carer’s leave will only apply to employees so that they may provide or arrange care for a dependant with a long-term care need.
A ‘dependant’ is defined in the same manner to that 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 broader provision of a person who reasonably relies on the employee to provide or arrange care.
The right will be applicable from the first day of employment, so there is no qualifying period before leave can be requested. Essentially, as a ‘day one right’ the employee would be able to take carer’s leave, with appropriate notice, from the beginning of their employment.
In the government’s consultation response, over half of respondents supported carer’s leave being a day one right. A significant number of respondents who favoured a day one right identified the fact that caring responsibilities cannot be paused for a period of time while an employee completes a qualifying period. Respondents also suggested that knowing an employer is carer-friendly is important to carers when applying for a new role, and that enforcing a qualifying period would not be consistent with the ambition of the policy to help more carers stay in employment.
In line with other statutory leave entitlements, employers cannot penalise any employee choosing to take advantage of carer’s leave once brought into force. Dismissal of an employee for a reason connected with their taking carer’s leave will be automatically unfair and will not require a minimum length of continuous service to be able to claim Unfair Dismissal in the employment tribunal.
What will carer’s leave be used for?
The Act defines a ‘long-term care need’ 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 connected to care required as an elderly person.
The consultation therefore sets out a broad definition of ‘caring’ for the purposes of carer’s leave, outlining that it could be appropriate for an employee to take carer’s leave for one, or a combination, of reasons including:
- Providing personal support, such as keeping an eye out for someone, keeping them company and staying in touch.
- Providing practical support, such as making meals, going shopping for them, laundry, cleaning, gardening, maintenance and other help around the home.
- Helping with official or financial matters, such as helping with paperwork, dealing with ‘officials’ (also over the phone and the internet), paying bills/rents/rates and collecting pension/benefits.
- Providing personal and/or medical care, such as collecting prescriptions, giving medications, changing dressings, helping them move around the home, getting dressed, feeding, washing, bathing and using the toilet.
- Making arrangements, such as dealing with social services or the voluntary sector, moving someone into a care home and making home adjustments or adaptations.
There is a clear emphasis on long-term care needs as it was clear from the consultation response that the government believed that other types of leave should be used for dealing with short-term care needs such as taking annual leave or time off for dependants.
Further regulations will be able to provide what ‘particular activities are, or are not, to be treated as providing or arranging care’, which suggests there will be limitations and possible exceptions, possibly for terminal illness. Another issue the regulations will cover is whether or not the entitlement to one week’s leave covers all dependants an employee may have (i.e. one week per dependant) or whether it is one week for every employee. Irrespective of how many dependants they have.
There is no requirement for an employee to evidence their entitlement to the leave, and the Carer’s Leave Act even states that the regulations may provide that an employer cannot require an employee to supply evidence if they request carer’s leave. Both employers and employees may be relieved by this, given the challenges of managing sensitive personal and/or medical information relating to a third party.
How can carer’s leave be taken?
This will become clearer once the regulations are published. However, from the government’s response to the consultation, a flexible approach to taking carer’s leave is anticipated whether that is as full days or half days or up to a block of one week in a 12-month period. Clearly, from its response to the consultation, the government identified the need for flexibility for carers.
Notice requirements will apply, consistent with the purpose of the leave being for non-emergency situations to assist those with planned-for caring responsibilities. Again, we need to wait for the regulations to be published, it is anticipated that the employee will need to give notice that is at least double the length of the time being requested as leave. Employers will not be able to deny an employee’s request for carer’s leave but can postpone it. The regulations will specify the circumstances in which the employer can postpone the leave and serve a counter notice.
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 would be able to 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 considerations for employers
Employers will need to wait until the regulations are published to know for certain how this new workplace right will operate in practice. The new right is not expected to be in force before April 2024 at the earliest, and therefore, though it is not yet necessary to change and update policies and procedures, it is important to consider preparatory steps:
- Updating or formulating policies to inform employees of the new right and the process they are required to follow in 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
- Consider how to monitor and track the number of days taken in a set period
- Educating managers of the new right and the risks associated with not giving proper consideration to the implications of that right. Further, a dismissal connected to using the leave will be automatically unfair, and the potential difficulties around this topic
- Support can be offered to carer employees who may be struggling with the juggling of their caring and employment obligations