Employees who care for a dependant with a long-term care need will be entitled to one week of flexible unpaid leave per year.
This right is granted via the Carer’s Leave Act 2023 which gained the Royal Assent on 24 May 2023. The Act is in the nature of an enabling Act, i.e. permitting the government to make regulations containing the details of how the right will work. New sections 80J-N are inserted into the Employment Rights Act 1996.
There is no timetable for implementation, the government simply saying that the necessary secondary legislation will be laid ‘in due course’. There will be further consultation before implementation.
Currently, unpaid carers who are also in employment must rely on other types of leave to meet their caring responsibilities, such as parental leave if they are caring for a child or annual leave.
Employees have the right to unpaid time off to handle emergencies and certain other situations involving dependants, including children, spouses, and parents, but this type of leave cannot be taken where the employee knows about the situation beforehand, which limits how it can be used. For example, it could not be used to take an elderly parent to a planned or routine hospital appointment.
Employees are increasingly using the right to request flexible working to help accommodate their caring responsibilities, but this is dependent on the flexible working pattern being workable for and accepted by their employer.
A 2017 survey revealed that four-fifths of employers weren’t aware which of their staff have caring responsibilities when they’re not at work. Surveying staff in advance of the new right coming into force to determine which of them are carers is likely to be very advisable.
Outline of the new right
- A new entitlement to carer’s leave will be available to the employee (not the wider category of ‘worker’) irrespective of how long they have worked for their employer (a Day 1 right).
- This will rely on the carer’s relationship with the person being cared for (the dependant), which will broadly follow the definition of dependant used in the right to time off for dependants – 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 a person who reasonably relies on the employee for care.
- The dependant must have a long-term care need. This is defined as a long-term illness or injury (physical or mental) likely to require care for more than 3 months, a disability as defined under the Equality Act 2010, or issues related to old age.
- Leave will be able to be taken either as a single block of one week or individual days or half days.
- Employees will be required to give notice ahead of taking carer’s leave. The notice requirement will be in line with that of annual leave, where an employee must give notice that is twice the length of time being requested as leave, plus one day. To enable employers to manage and plan for absences, employers will be able to postpone - but not deny - the leave request for carer’s leave. The grounds on which they can do so will be strictly limited to where the employer considers that the operation of their business would be unduly disrupted. Employers will be required to give a counter-notice if postponing the request to take carer’s leave.
- Employees will be able to self-certify their entitlement to carer’s leave.
- Those taking carer’s leave will be protected from suffering from detriment. Dismissals for reasons connected with exercising the right to carer’s leave will be automatically unfair.