Carer’s leave – understanding the new law

On 6 April 2024 the Carer’s Leave Regulations 2024 SI 2024/251 will come into force giving qualifying employees up to one week of statutory unpaid carer’s leave in a 12-month rolling period to care for, or arrange care for, dependants with long-term care needs. The new law also provides protection from detriment and unfair dismissal relating to such leave.

Eligibility: who is entitled to carer’s leave? 

When the Regulations come into force, carer’s leave will be a day one right for employees, meaning no minimum service requirement before being able to take the leave. The leave will allow employees to care for, or arrange care for, dependants with long-term care needs. 

A “dependant” 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 provision of a person who reasonably relies on the employee for care. 

As to a “long-term care need”, this covers an illness or injury (whether physical or mental) that requires, or is likely to require, care for more than three months, as well as disabilities under the Equality Act 2010 and issues relating to old age. 

Interestingly, the Regulations provide no clarity on what is meant by “caring for or arranging care for” such dependants, and it is seemingly left open to the employee to decide whether they satisfy this. In any event, an employer cannot require evidence proving entitlement to carers leave. 

Employees: how to take your leave

Remember the following key areas: 

• There is no need to take the entire entitlement on consecutive days, but a minimum of half a working day must be used at a time and maximum of one continuous week.
• Ensure you give the correct notice to your employer. Although this doesn’t have to be in writing, you need to specify which days (or part of the day) you intend to use, that you are entitled to take carer’s leave and are eligible to do so. 
• Notice needs to be given, which is either twice as many days as the earliest time requested or three days, whichever is the greatest.
• Leave is limited to up to one week, regardless of how many dependants you have.
• You remain bound by your contractual obligations (with some exceptions). 
• If you have a contractual right to carer’s leave, you cannot take advantage of both your contractual and statutory right. You can choose to take advantage of whichever is more favourable but will retain statutory protection.
• During leave, you retain all terms and conditions, except for renumeration. Any leave is unpaid unless your employer agrees otherwise.

Can an employer refuse leave? 

No but employers are permitted to postpone it if they consider that the business would be unduly disrupted by the absence of the employee. To postpone the leave, an employer must: 

1. Write to the employee as soon as reasonably practicable and not later than the earlier of  seven days of receiving the notice or before the earliest day or part day requested. 
2. State the reasons for the postponement. 
3. Consult with the employee and confirm the agreed new dates for the leave, which must be the same length of time as requested and commence within one month of the originally requested date(s).

Protection and remedies for employee’s

The new Regulations provides protection from detriment or dismissal for an employee who takes, or seeks to take. carer’s leave, or because their employer believed they were likely to take carer’s leave. 

Employee’s returning from such leave are also entitled to return to the same job with the same terms as when they went on leave. 

A tribunal may make a declaration and award compensation, which it considers ‘just and equitable’ taking into account the employer’s behaviour and any loss suffered by the employee.

Employer’s: practical considerations 

In preparation for 6 April 2024 employers  should start considering: 

1. Updating company handbooks and policies to explain carer’s leave and how an employee can request or take it or, introducing a carer’s leave policy if you do not yet have one . This could include whether the employer intends to waive the notice requirement.
2. Providing template request forms for employee’s.   
3. Providing education and training to senior staff or line managers on the topic of carer’s leave and how to deal with requests sensitively whilst also protecting the interests of the company. 
4. Where an employee is part-time or works a variable work pattern, providing information to relevant employees on how the calculation of their carer’s leave is calculated. 
5. Where the employer is postponing carer’s leave, creating a procedure for consulting with the employee to rearrange the leave. 

According to the charity Carers UK, around 9% of people are providing unpaid care to a dependant, meaning a large proportion of the workforce could be affected.

This new law is good news for employees who have concerns about their vulnerable dependants, which can be used in addition to other leave rights such as time off for dependants, flexible working requests, compassionate leave and annual leave. 

It may also open the door for conversations between employees and employers over the topic, and how employers can provide further support to their employees. It does however place further burden on employers in terms of process and procedure.

If you are an employer and would like a template Carers Policy for a fixed fee then contact us for further details.

For further information or advice on any employment law matter, please contact Louise Brenlund or Hope Flashman-Wells

Warners Solicitors has offices in Sevenoaks and Tonbridge, Kent.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.