Whilst the Carer’s Leave Act 2023 became law on 24 May 2023, it required regulations to set out how the entitlement would work. These have now been laid before parliament in draft form. This article explains the new right and the practical implications for employers.

Who can take carer’s leave?

Carer’s leave will apply to employees and is intended to allow the individual to provide or arrange care for a dependant with a long-term care need.

The definition of “dependant” mirrors the definition used for the right to time off for dependants. This 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 catch-all provision, of a person who reasonably relies on the employee for care.

The leave is a “day one” right, meaning there is no minimum service requirement to take advantage of it. As with other statutory leave entitlements, employers cannot penalise any employee choosing to take advantage of carer’s leave once it is brought into force. Dismissal of an employee for a reason connected with their taking carer’s leave will be automatically unfair. Employees are also entitled to return to the same job they were doing immediately before they took carer’s leave.

What will carer’s leave be used for?

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 three months, a disability under the Equality Act 2010, or issues related to old age. The focus on a long-term care need is deliberate as the government stated in its consultation response that it believed that other types of leave should be used for dealing with “short-term care needs”, such as time off for dependants or annual leave.

Whilst the Carer’s Leave Act set out that regulations could provide that “particular activities are, or are not, to be treated as providing or arranging care”, the current draft regulations do not impose any such limitations. It therefore appears to be left open to employees to make an assessment as to whether they are providing or arranging care for a dependant (provided they are eligible to take the leave in the first place).

However, the regulations do now make clear that the entitlement to one week’s leave is the maximum any employee could be entitled to, irrespective of how many dependants an employee has. This point was previously unclear.

Employers are not able to require an employee to evidence their entitlement to the leave. Both employers and employees may be relieved by this, given the challenges of managing sensitive personal and/or medical information relating to a third party.

How can carer’s leave be taken?

Flexibly. The key procedural requirements are:

• Employees using the leave must take a minimum of half a working day at a time; a working day meaning the employee’s usual working pattern. There is no need for the leave to be used on consecutive days either. Employees could therefore take five separate days over a 12-month rolling period.
• Employees are required to provide notice, although this does not need to be in writing. The notice must include the fact that the employee is entitled to take carer’s leave and the day(s) or part of a day that will be taken.
• Employees will be required to give notice which is either twice the length of time being requested, or three days, whichever is the longest. It is open to employers to waive the notice requirement provided the employee is otherwise eligible to take carer’s leave.

Does an employer have to agree?

Employers are not able to deny an employee’s request for carer’s leave but can postpone it if they reasonably consider that the operation of the business would be unduly disrupted if the leave was approved. If the employer does postpone the leave, they must provide a written counter notice within seven days of the request, explaining the reason for the postponement and the revised dates the leave can be taken on. The employee must be allowed to take the requested leave within a month of their original request.

What remedies does an employee have if these rights are not upheld?

 An employee will be able to bring an employment tribunal claim if their employer has unreasonably postponed, prevented or attempted to prevent them from taking carer’s leave. A tribunal can make a declaration and award compensation. Compensation is subject to what the tribunal considers “just and equitable”, taking into account the employer’s behaviour and any consequential loss sustained by the employee.

Practical implications for employers

As explained above, the new right will come into force on 6 April 2024. Employers should therefore start to consider:

• Updating or creating policies to inform employees of the new right and the logistics of requesting and taking it.
• Creating a “self-certification” form for employees to complete, declaring that they meet the legal definition of a carer and will be using the leave in that capacity.
• Introducing a system of record-keeping to track the number of days taken. Employers should also use this data to consider what further support they could provide for employees (for example, allowing additional unpaid time off if staff are using high levels of annual leave to provide intermittent care or help to dependants).
• Informing people managers of the new right, the fact that any dismissal connected to using the leave will be automatically unfair, and the potential sensitivities around this topic. Some employees may not wish their colleagues to be aware they are taking time off for caring responsibilities, if they have not previously discussed this at work, or may not want to inform their manager of their need to take carer’s leave.

Some employers may want to consider if they wish to enhance these new rights by offering pay for some or all of an employee’s entitlement or even just an increased amount of unpaid time off. This might, for example, be part of a package of measures designed to attract and retain older workers (something which we have written about here). It is also worth noting that where an employer does offer a contractual right to carer’s leave, an employee cannot take advantage of both their contractual and statutory right separately, but may choose to take advantage of whichever right is more favourable. However, the overall protection given by the statutory scheme will always apply.

Even if employers do not intend to offer paid leave, the new right may encourage employees to talk to their employer about any caring responsibilities they have and how they are managing those responsibilities alongside work, and this in turn may lead to more employers adopting carer policies.