From 6 April 2024, employees have a statutory right in defined circumstances to take at least one week of unpaid leave during any 12-month rolling period to care for a dependant.

The main provisions of the Carer’s Leave Act 2023 which received Royal Assent on 24 May 2023, were brought into force on 4 December 2023. The Act amends and inserts new provisions into the Employment Rights Act 1996 and provides the power for the Secretary of State to make regulations to create an entitlement to carer’s leave.

The Carer’s Leave Regulations 2024 set out the details of how the entitlement to Carer’s Leave works.  It extends to England and Wales and Scotland.

Who can take carer’s leave?

The right will apply to employees from day one of employment (meaning there is no minimum service requirements). It allows the individual to request time off to provide or arrange care for a dependant with a long-term care need.

As with other statutory leave entitlements, employers cannot penalise any employee choosing to take advantage of carer’s leave. Employees are also entitled to return to the same job they were doing immediately before they took carer’s leave.

Who is a dependant?

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.

What is a long-term care need?

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. The focus on a long-term care need is deliberate as the intention was that other types of leave should be used for dealing with emergency or short-term care needs, such as time off for dependants or annual leave.

The leave covers providing or arranging care and there are no specific limitations or excluded activities within that definition. Acas gives some examples in their carer’s leave guidance such as  taking their disabled child to a hospital appointment; moving their parent who has dementia into a care home; or accompanying a housebound dependant on a day trip.

Given the current state of the NHS waiting lists and underfunded social care provisions, it is likely that many employees will need to take advantage of this leave, although the fact that it is unpaid may deter many potential applicants, particularly in the current cost of living crisis.

What is a week’s leave?

The equivalent of one week, which will be equal in duration to the period the employee is normally required to work during the course of a week. For example, if an employee works 3 days a week, it will be three days entitlement; if an employee works 6 days a week, it will be 6 days.

How do you calculate entitlement if an employee has an irregular working pattern?

An average is taken to work out how much carer’s leave the employee is entitled to as follows:

• add up the total number of hours or days worked in the previous 12 months ending on the last day of the carer’s leave requested (or in the period they have been employed if that is less than one year), including any holiday or family-related leave; then
• divide the total by 52 (or if the employee has been in the job for less than one year, by the number of weeks they have been employed)
• For an employee who has worked for less than a week, a week’s leave is a period which is equal in duration to the period for which the employee is expected to work in that week

 

What if there is more than one dependant?

The entitlement to one week’s leave is the maximum irrespective of how many dependants an employee has.

 

How can leave be taken?

The key procedural requirements are:

• Employees can take leave in increments of half or whole working days, which need not be consecutive days. For example, an employee who works 5 days a week could take the leave on five separate days or 10 half days in a 12-month rolling period
• A ‘working day’ means the period in which an employee is normally expected or required to work on the day the leave is taken

• Employees must give notice which is either twice the length of time being requested, or three days, whichever is the longest, although employers may choose to waive this requirement. If an employee cannot give the minimum notice, they could use the statutory right to time off for dependants

• Employees are required to state the fact that the employee is entitled to take carer’s leave (has a dependant with a long-term care need, wants to be absent from work to provide or arrange care for that dependant, and has not exceeded their entitlement)  and the day(s) or part of a day that will be taken
• Employers are not able to require an employee to evidence their entitlement to the leave

 

What about pay?

The statutory right is unpaid leave. However, employers may choose to pay employees for some or all of the leave.

 

Can an employer refuse?

Employers can postpone the leave if they reasonably believe it would unduly disrupt the business, but they cannot refuse it. 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 are the penalties for an employer 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, or subjected the employee to a detriment because they have exercised, or may exercise, their rights. A tribunal can make a declaration and award compensation, which 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.

Dismissal of an employee for a reason connected with their taking carer’s leave will be automatically unfair.

 

Practical implications

Employers should consider:

• Creating a Carer’s Leave Policy to inform employees of the new right and the procedure for requesting and taking it
• Creating a simple form for employees to complete, declaring that they are entitled to take carer’s leave, will be using the leave in that capacity, and specify the days and/or half days on which they wish to take it
• 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 with caring responsibilities
• Informing and training managers of the new right, the penalties if the rights are not upheld, and the need to treat these matters sensitively
• Whether to enhance these new rights by offering pay for some or all of an employee’s entitlement and/or an increased amount of unpaid time off. If an enhanced contractual right is given, an employee cannot take advantage of both their contractual and statutory right separately but may choose to take advantage of whichever right is most favourable. The statutory rights and protections are the minimum

 

More help from Lennons

Whether you are an employer or employee, for more help carer’s leave or any employment related issue, please contact the employment law team at Lennons – call 01494 773377.