Carers Leave

Carers Leave Creates A New Right For Employees With Long Term Caring Responsibilities

The Government consulted on potential Carers Leave in 2020 and published their response to that consultation in September 2021. The Carers Leave Bill progressed through Parliament and received Royal Assent in May 2023, so is now an Act of Parliament.

Overview Of Carers Leave

The Carers Leave legislation provides employee’s who have a dependant with a long-term care need with the right to take up to five working days of unpaid leave in any rolling 12 month period. The aim of the leave is to enable the employee to provide or arrange care for the dependant. The leave can be taken in either individual days or half days up to a block of one week. There is no qualifying length of service and applies from ‘day one’ of the employment.

Eligibility To Carers Leave

Employees will be eligible to take carers leave from ‘day one’ of the employment.

“Long-term care need” is defined as:

• An illness or injury (either physical or mental) that requires/is likely to require care for 3 months or longer,
• A disability under the Equality Act 2010, or
• Issues related to old age.

There will be limited exemptions from this requirement for long-term care – for example, in the case of terminal illness.

The definition of a dependant follows the one 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 but not as a boarder/employee/lodger or tenant, or someone who reasonably relies on the employee to provide or arrange care.

This last relationship mentioned is critical for employees as a catch-all provision. The consultation highlighted that the leave should be available to those caring for girlfriends, boyfriends, siblings, grandparents, and so on. The inclusion of “a person who reasonably relies on the employee for care” is sufficiently broad to include such relationships.

The leave will be a “day one” right, meaning there is no minimum service requirement to take advantage of it. 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.

How Carers Leave Can Be Taken

Carer’s leave can be taken flexibly either as consecutive or non-consecutive full days or half days, up to a block of one week per year. It was clear from the consultation that this approach was regarded as the most advantageous for carers.

The employee must give notice, in writing, that is twice the length of the time being requested as leave, or three days whichever is the greater. The notice doesn’t need to be in writing and an employer cannot ask for evidence in relation to the request before granting leave.

Employers will not be able to deny employees’ requests for carer’s leave but can postpone carer’s leave where all the following apply:

• The operation of the business would be unduly disrupted if the leave occurred during the requested period;
• The employee is allowed to take a period of carer’s leave of the same duration, within a month of the period initially requested; and
• A written notice is given to the employee within seven days of the initial request, setting out the reason for the postponement and the agreed dates on which the leave can be taken.

How To Prepare

It is widely recognised that employees caring for a dependent often resort to requesting parental leave or flexible working arrangements in support of their duties, both of which were designed for other purposes. This entitlement will be in addition to the current legislation which allows employees to take time off to care for dependants in an emergency.

The take-up of this right may be limited as time off will be unpaid. A key decision for employers will therefore be whether to offer full pay for at least a proportion of the week’s leave.

From a practical perspective, employers are likely to want to put paperwork in place to provide for self-certification of absence for caring responsibilities and to create a policy explaining the right and processes for exercising it.

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