New right to carer’s leave – How will it work?

Posted on: November 9th, 2021

Last year, the Government held a consultation into the right for unpaid carers to be entitled to one week’s unpaid carer’s leave each year in order to carry out their caring responsibilities.

The Government have now responded to this consultation and produced guidance for employers (found here) on how the new right to carer’s leave will operate and work in practice. The decision to introduce this workplace right has been made to help support unpaid carers in coping with some of the challenges they face in balancing work and caring responsibilities.

Some key points in relation to the new carer’s leave include:

Who is eligible?
All employees will be eligible irrespective of their length of service (a day one right). However, the right does not extend to workers.

Entitlement will depend on the carer’s relationship with the person being cared for, which should broadly follow the definition of ‘dependant’ used in the right to time off for dependants. This means the employee should be caring for their spouse, civil partner, child, parent, someone living in the same household (excluding a tenant, lodger or boarder) or a person who reasonably relies on them for care (e.g. this is likely to include grandparents and siblings).

Eligibility will depend on the person being cared for having a long-term care need. This is defined as someone with a disability (as defined under the Equality Act 2010) or someone who has ‘issues relating to old age’. There will be limited exemptions from this requirement for long-term care – for example, in the case of terminal illness. The Government’s view is that other types of leave may be appropriate for those employees providing short term care.

What can the leave be used for?

A broad definition of what the carer’s leave might be used for has been applied and it can be used for providing care or making arrangements for the provision of care.

How can the leave be taken?

The one week’s leave per year can be taken flexibly. It can be taken in one block or as individual days or half days, up to one week per year.

How would the leave be requested?

Employees will need to give the employer notice ahead of taking carer’s leave and will need to give notice that is twice the length of time being requested plus one day.

Employers can only reject a request for carer’s leave where it considers that the operation of their business would be unduly disrupted. The employer would then need to give counter-notice regarding the leave period.

Employees will self-certify themselves for carer’s leave and do not need to produce evidence to the employer. A false application can be dealt with in the same way as a false claim for sickness absence or any other disciplinary matter.

Does this change other policies and rights?

Carer’s leave will not add to or amend any leave entitlement currently in place for parents (e.g. parental leave).

When does this come into force?

Not yet.

The government have advised that new legislation will be put in place to deal with this right in due course and when ‘parliamentary time allows’ and so this right cannot be exercised currently by employees.

Will leave be paid?

No.

The legislation will only include the right for employees who are unpaid carers to take unpaid leave. Employers are, however, free to voluntarily pay employees for time taken off to care for dependents but this is entirely discretionary.

Employers should be mindful that where any leave taken will be unpaid, employees may prefer to take annual leave or some other type of leave in these circumstances so that they don’t miss out on any pay for the period of absence.

Protection for employees taking leave

As an employer, you must ensure that employees do not suffer a detriment as a result of taking carer’s leave and they must not be penalised for making use of this new entitlement. Any dismissals by an employer that are for reasons connected with exercising the right to carer’s leave will be automatically unfair which means that employees who do not have 2 years’ service will also have protection from dismissal in these circumstances.

Benefits of new right

The introduction of this additional leave may create additional administration and considerations for employers. However, the Government’s view is that the scheme is likely to provide many benefits to employers in terms of ensuring better support for the workforce which will lead to increased staff retention and better health, wellbeing and satisfaction of employees overall.

Next steps
In considering the introduction of this new workplace right, employers should consider whether any policies need to be created or amended to inform employees of their entitlement and to set out how it will work. Employers will also need to consider how they communicate this update to staff members and particularly managers who are likely to be responsible for authorising this leave. Other internal documents may need to be created in order to implement the policy in practice, for example having a self-certification form prepared or introducing record keeping to ensure you know how many days of the entitlement an employee has used.

Here to help

If you have any questions on carer’s leave, or would like to discuss any employment queries generally, please do get in touch. We would be happy to help.

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