As the daffodils flower into a tentative (yet somewhat wet) spring, Prettys Employment Team continues its review of the budding developments in employment law for 2024.  In this article, Sheilah Cummins focuses on the introduction of the new right to unpaid Carer’s Leave which comes into force on 6 April this year, looking at the provisions in further detail and offering advice on the steps employers can take to best prepare. 

What’s new? 

Carer’s Leave

On 6 April 2024, The Carer’s Leave Regulations 2024 come into force (see details here).  These provide for a new, “day one”, right for employees to take one week’s unpaid carer’s leave in any rolling 12 month period. 

Who is eligible? 

The right applies to any employee who has a dependant with a long-term care need and who wishes to be absent from work in order to provide or arrange care for that dependant. 

The definition of “dependant” for the purposes of this right is similar to the definition in the existing right to emergency time off for dependants (i.e spouse/civil partner, child, parent, household member and anyone who reasonably relies on the employee for care).   However, the caveat for the entitlement to take Carer’s Leave is that the dependant must have a “long-term” care need.  This means that that the dependant must: 

• have an illness or injury that does or is likely to require care for more than three months; 

• have a disability for the purposes of the Equality Act 2010; or

• require care for a reason connected with their old age.

Length of leave?

The entitlement is to one week’s leave in any rolling 12 month period. This is the case, regardless of the number of dependants an employee may have. 

A “week’s leave” for these purposes is the period of time the employee is normally expected, or required to work in a week at the time the request is made.  For example, a part-time employee, who normally works three days in one week will be entitled to three days’ leave.  For employees whose working hours vary, a “weeks leave” is calculated by adding up all the hours worked over the previous 12 month period and dividing by 52. 

The leave can be taken either in one continuous block, or non-continuously in half or full days. 

How to take the leave? 

An employee who wishes to take carer’s leave must give their employer, before the first day of leave specified in their notice, the earlier of either: 

• at least twice as many days’ notice as the number of days’ leave they wish to take; or

• three days’ advanced notice

Various conditions apply when giving notice.  In particular, the employee must confirm that: 

• they have a dependant with a long-term care need; 

• they need to be absent in order to arrange care for that dependant; and

• they have not already exceeded their entitlement to carer’s leave.

They must also specify the dates on which leave is to be taken and if they want to take a whole or half day. 

There is nothing in the Regulations that require the employee’s notice to be in writing and the Regulations explicitly prohibit employers from requiring evidence from employees in support of their request. 

Dealing with a request for Carer’s Leave

Employers will not be able to decline the request but may postpone it where it reasonably considers that the operation of the business would be unduly disrupted if the employee took the leave when they wanted. 

If an employer wants to postpone the leave, it must, in consultation with the employee, permit the employee to take the same duration of leave on date(s) no later than one month after the first day initially requested, and must set out in writing the reason(s) for the postponement and the agreed date(s) on which the leave can be taken.

An employer who wishes to exercise its right to postpone must let the employee know as soon as reasonably practicable but in any event within seven days after receipt of the notice, or before the first day of the proposed leave, whichever is earlier. 

Arrangements during Carer’s Leave

As with other family friendly absences, employees will continue to benefit from, and remain bound, by all their terms and conditions of employment – save for terms and conditions relating to remuneration. 

Where employees have taken an isolated period of carer’s leave, they have the right to return to the same job on no less favourable terms and conditions. For the avoidance of doubt, time spent on carer’s leave will not count towards any continuous period of absence where it has been combined with another period of statutory leave.  This means, for example, that if a woman takes 26 weeks’ maternity leave, plus a week’s unpaid carer’s leave and then returns to work in the 28th week, she will still have the right to return to the same job in which she was employed before her maternity leave started. However, where she takes 26 weeks’ maternity leave and one week’s parental leave for instance, returning to work in the 28th week, her entitlement to return will then be either to return to the same job or, if not reasonably practicable, to a suitable alternative role on no less favourable terms and conditions. 

Employment protection

Employees are protected from detriment or dismissal because they have taken, sought to take or made use of the benefits of carer’s leave. 

In this regard, the recent case of Hilton Foods Solutions v Wright 2024 (which relates to an employee who sought to take parental leave) provides useful guidance on the likely scope of the protection. 

Commentary

All the evidence suggests that we are facing a social care crisis. Our capacity to access good quality professional care has hit an all time low.  More and more employees appear to be juggling the usual work and family commitments with additional – and increasingly more complex - caring responsibilities.  The question is whether these additional provisions will make any real difference to those affected and, if they do, what the impact might be for employers?

Some critics may argue that this legislation is an unnecessary imposition on employers who are already over-burdened with a host of family friendly employment provisions.  After all, there are other statutory rights that could be utilised, if necessary, to help and protect employee carers, such as the right to emergency time off for dependants, the parental leave provisions and legislation on indirect discrimination. Employers can already struggle to manage competing requests for time off; adding another statutory right into the mix may only complicate matters further. 

Indeed, the definition of a “dependant” for the purposes of this right does nothing to allay those fears.  The definition includes not only those who require care for a reason connected with old age and those who require (or are likely to require) care for more than three months, it also includes those who have a “disability” for the purposes of the Equality Act 2010.  This is where I think the problem will lie.  The threshold test for “disability” is very low. It is possible, therefore, that more employees than expected could qualify to take carer’s leave by virtue of the fact that someone in their household meets the test for “disability”.  Whether or not they are prepared to take it is another matter – particularly when it is unpaid – but nevertheless, it would be a mistake to under-estimate the potential disruption that it could cause if not managed appropriately.

There is of course, the right for employers to postpone requests for carer’s leave if they reasonably believe that business operations will be unduly disrupted.  However, there is no guidance on what would (or could) be regarded as “undue” disruption. This will ultimately be a question of fact and degree, and for now, the cases on flexible working requests are the only guidance that we have as to the Tribunal’s probable approach.  In particular, it seems likely that the Tribunal will expect a well-reasoned decision that takes into account all the circumstances, rather than applying a blanket policy across the board (see our Deep Dive Flexible Working Article)

Matters may be further complicated if an employee changes their hours part-way through the year.  The calculation of “a week’s leave” for the purposes of leave entitlement, is the period of time an employee is expected to work in a week at the time the request is made. An employee working full-time may take three days’ carer’s leave, subsequently reduce their hours by 40% and then ask for another period of carer’s leave within the same year. Careful calculations will need to be made to ensure that entitlement is not exceeded, or unduly denied, as a result. 

Action steps

• Review and update your policies and procedure to refer to Carer’s Leave.

• Include provision for requests to be made in writing, so that you have an audit trail.

• Ensure leave entitlement is adjusted if working hours change.

• Decide if you are going to offer enhanced pay.  If so, ensure employment contracts templates are updated to refer to this as “paid leave” so they remain Section 1 ERA 1998 compliant 

• Ensure your line managers are aware of the new right to request Carer’s leave and that they should not ask an employee for evidence to support their request.