New legislation introduces unpaid Carer’s Leave

Specialist employment solicitor, Charlotte Holman, takes a look at the new legislations regarding unpaid carer’s leave, and gives employment law advice to employers on items to check.

From 6 April 2024, employees will have a new right from day one of their employment to take up to one week of unpaid carer’s leave every 12 months to provide or arrange for care for a dependant with a long-term care need. The term ‘dependant’ broadly mirrors dependant relationships under the right to time off for dependants meaning that a person could take leave to care for:

• A spouse or civil partner
• A child
• A parent
• A person who lives in the same household as the employee (otherwise than by reason of being their employee, tenant, lodger, or boarder)
• A person who reasonably relies on the employee for care

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 3 months, a disability under the Equality Act 2010, or issues related to old age.

The unpaid leave can be taken in either individual days or half days, up to a block of one week. An employee who wises to take leave will be required to give notice of three days of double the length of leave requested, whichever is longer.

It is important to be aware that employers will not be able to require an employee to evidence their entitlement to the leave and in some cases this might actually be for the best due to the challenges of managing and requesting sensitive personal and/or medical information relating to a third party.

An employer cannot decline a request for unpaid leave but may postpone it where all of the following factors apply:

• The employer reasonably considers that the operation of the business would be unduly disrupted if it allowed the leave during the requested period.
• The employer allows the employee to take a period of carer’s leave of the same duration, within a month of the period initially requested.
• The employer gives the employee a written notice within 7 days of the initial request, setting out the reason for the postponement and the agreed dates on which the leave can be taken.

Whilst an employee takes carer’s leave, they will remain entitled to the benefit of their terms of employment with the exception of the right to remuneration. As with other types of statutory leave, if an employer unreasonably postpones, prevents or attempts to prevent an employee from taking carer’s leave then an employee may be entitled to bring a claim in the Employment Tribunal. If such a claim is successful then the Tribunal can make a declaration and an award for compensation.

What should employers consider doing now?

• Look at updating or creating a carer’s leave policy. This will ensure that employees are aware of how the right to carer’s leave works and may encourage employees to talk to employers about any caring responsibilities they have outside of work.
• Introduce a record keeping system to keep a record of the number of days taken in relation to carer’s leave. The data could be utilised to identify whether further support may be required for some employees who make use of the leave or take high levels of annual leave to help or care for dependants).
• Ensure that managers are aware of the new right and protection given to employees who make use of carer’s leave. A dismissal for reasons connected with exercising the right to carer’s leave will be automatically unfair.
• Create a self certification form for employees to complete, confirming that they meet the legal definition of a carer and will use the leave for that purpose.

Holmes & Hills have expert employment law solicitors who can assist and advise both employers and employees in respect of the new changes relating to carer’s leave and other family friendly rights.