The newly announced carer’s leave

In 2020, the Government consulted on introducing a ‘carer’s leave’ as a ‘day one right’ to help employees with long-term caring responsibilities balance these with their paid work. The Government’s response has now been published. While it is not yet known when carer’s leave will come into force, the Government is set to introduce legislation when ‘parliamentary time allows’.

 

Who is eligible?

Carer’s leave will be available to employees only (ie workers and consultants will not be eligible) who have a relationship with the person they are caring for. 

It is expected that the relationship between employees and the person they are caring for, will follow the definition of a ‘dependent’, which is currently used in relation to the right to take time off for dependants. Such ‘dependents’ include:

  • spouses and civil partners;
  • children (including adopted and step-children);
  • parents;
  • anyone who lives in the same household as the employee (other than by reason of them being their employee, tenant, lodger, or boarder); and
  • anyone who reasonably relies on the employee for care (including, for example, grandparents and siblings if they depend on the employee for care).

 

What kind of care needs to be provided?

To be eligible, the person being cared for by the employee taking (or requesting to take) carer’s leave, must have a ‘long-term care need’. 

Someone who has a long-term care need is someone who has issues relating to old age or has a disability. Under the Equality Act 2010, a disability:

  • is a physical or mental impairment;
  • adversely affects the ability of an individual to carry out normal day-to-day activities;
  • has a substantial adverse effect; and
  • has a long term adverse effect.

There will be certain exceptions to this requirement for a ‘long-term care need’, including where the employee is looking after someone with a terminal illness.

The Government has included a broad definition of the types of care that can be provided, and includes the employee:

  • providing care themselves; 
  • making arrangements for their dependent to be cared for by someone else; and
  • providing practical support (eg helping their dependant with financial or other official matters).

 

How much carer’s leave can be taken?

Eligible employees will be able to take up to one week of unpaid leave per year. 

Carer’s leave can either be taken in one block of one week or as individual days or half days.

How can carer’s leave be taken?

It is expected that carer’s leave can be taken by the employee giving notice to their employer in advance. Employees will need to give twice the length of notice as the length of time they want to take off, plus one day. For example, if an employee wanted to take two days of carer’s leave, they would have to give at least five days’ notice to their employer.

Employers will not be able to turn down requests to take carer’s leave but may be able to postpone employees taking carer’s leave if they believe that the operation of the business would be unduly disrupted by the employee taking leave.

Employees will not have to provide evidence to prove that they need to take leave to care for someone. Instead, they will be able to self-certify that they qualify for carer’s leave.

Employers will be able to take disciplinary action against anyone who makes a false application or misleads them in some other way regarding their right to carer’s leave.

 

When do employees gain the right to carer’s leave?

Employees will have the right to take carer’s leave from the first day of employment. In other words, employees who meet the eligibility criteria set out above won’t need to have worked for their employer for a minimum period before they become entitled to and can take carer’s leave.

Employees will also be protected from being penalised for taking (or requesting to take) carer’s leave. Further, if an employee is dismissed because they have taken (or asked to take) carer’s leave, their dismissal may be automatically unfair. If an Employment Tribunal finds a dismissal to be automatically unfair, then the employer may also have to reinstate the employee (ie give them their job back) or re-engage the employee (ie re-employ them in a different job) and pay compensation.

 

To learn more, visit the Government’s consultation outcome on carer’s leave. If you have any questions, do not hesitate to Ask a lawyer.

 

Rebecca Neumann
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