From 6 April 2024 a new employment right is due to come into force to allow carers who have responsibility for a dependent with a long-term care need to request up to one week of leave from their employer in a 12 month period. Unpaid care is becoming more prevalent in our society and particularly with this new statutory right, it is increasingly important for employers to consider.
Let’s put this into some context…
The amount of unpaid care being undertaken in the UK is increasing at a rapid rate. A recent study undertaken by Warwick University with support from Carers UK indicates that the unpaid care sector is worth approximately £156 billion per year, or £455 million per day.
The numbers of people now having to integrate care into their daily work and home lives had led to several inquiries being conducted by the government in an attempt to address the support given to the vast number of carers across the country.
However, due to the pressing issues posed by Brexit and the coronavirus pandemic, government action on unpaid care took a backseat, with promises made in manifestos in 2017 and 2019 being left unfulfilled. Now, though, to the long-awaited Carer’s Leave Act 2023 will enshrine the right for carers to take unpaid leave.
What’s the current position for leave for carers?
There is currently no specific right for carers to take leave. An employee with caring responsibilities could make a request for flexible working (and we are going to see changes made to that regime to make it broader too; see our separate article here) but this would be a permanent change to their terms and conditions. Otherwise, they could exercise the right to time off for dependants (though this is only short-term, emergency leave), take parental leave (if caring for a child) or use up annual leave.
How will the new Act change that?
The Carer’s Leave Act 2023, originally proposed by Liberal Democrat MP Wendy Chamberlain as a Private Member’s Bill, will be an amendment to the Employment Rights Act 1996. New regulations bringing the Act into operation were laid before Parliament in December 2023 and are due to come into force on 6 April 2024.
The Carer’s Leave Regulations will allow employees who have a dependant with ‘a long-term care need’ and want to be absent from work to provide, or arrange care for that dependant, to have the right from day one of their employment to make a request to take up to one week of unpaid leave in any 12 month period.
Under the regulations an employee can make a request to take unpaid leave on consecutive or non-consecutive, half days or full days and up to a block of one week. Employees must notify their employer in writing of their intention to take carer’s leave and the notice given must be at a least twice the period of leave requested or three days, whichever is the greater period of time. Although the notice requirement can be waived where other requirements of the regulations have been met. If the operation of the business would be unduly disrupted, the employer can postpone a request. If so, the employer must inform the employee before the leave was due to begin and provide reasons for their decision. The employer should then let the leave be taken within one month of the original requested start date. The re-scheduling should be carried out in consultation with the employee.
This leave would be protected in the same way as other forms of family leave, including protection from dismissal and detriment if an employee exercises or seeks to exercise the right to take leave.
Although there are some who hoped the Act would go further and allow a longer period of leave, this is undoubtedly a huge boost for those with caring responsibilities and a recognition of the role society as a whole has in supporting them.
Is there any other legal protection for carers?
Someone with caring responsibilities is unlikely, in themselves, to be regarded as disabled by the law but carers can still find protection under the Equality Act 2010. Under the 2010 Act, protection is given to individuals who experience direct discrimination because they are associated with someone who has a disability. An employer who treats a carer less favourably than someone who does not have caring responsibilities could therefore find themselves liable under the Equality Act even if the individual in question is not disabled.
What can employers do?
As Britain’s population ages and the pressure on social care increases, the unpaid care sector, and the number of people undertaking this extra labour, is growing very quickly. It is important that employers consider their own policies in place for unpaid carers, especially considering the developments in the legislation in this area.
Businesses should also consider what training managers may need to deal correctly with the growing challenge of unpaid care faced by employers and employees alike.
The Stephens Scown employment team works in partnership with organisations to improve their HR practices and advise on employment issues. To discuss this or any other HR issue call 01392 210700 or email employment@stephens-scown.co.uk.