New Right To Leave For Carers

In March 2020, the Department for Business, Energy and Industrial Strategy (BEIS) launched a consultation asking for comments on a proposal to give employees one week of unpaid leave each year to provide care. This consultation closed on 1st December 2021.

As a result of this consultation, the government has confirmed its intention to introduce an entitlement to carer’s leave as a day one right for employees and outlined what the leave entitlement will look like.

Unpaid carers will be able to take up to one week (five working days) of unpaid leave per year. This can be taken flexibly, either in individual days or half-days, up to a block of one week.

Eligibility will rely 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: 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 a person who reasonably relies on the employee for care.

The person being cared for should have a long-term care need. This would be defined as a long-term illness or injury (physical or mental), a disability as defined under the Equality Act 2010, or issues related to old age. There would be limited exemptions from the requirement for long-term care, for example, in the case of terminal illness.

The statutory right to this leave is unpaid for eligible employees, so there is no obligation for employers to pay those who are on carer’s leave, but organisations have the option of offering this leave as a contractual paid benefit. Details of this should be outlined in the contract documents and be communicated to staff. It is important that any enhanced payments are offered consistently, ensuring all staff are treated fairly and equally. Doing so minimises the potential risks of constructive dismissal or discrimination claims.

The right will only apply to people with employee status, so workers and self-employed individuals will not be included. These employees must continue to be unpaid carers.

Refusing carer’s leave or failing to comply with the new statutory entitlement when it comes in could lead to costly tribunal claims.
As well as the potential for a breach of employees’ statutory rights, there could be the risk of discrimination (including associative discrimination) claims if the employee is placed at a detriment for needing to take carer’s leave. Associative disability discrimination claims can be made when an employee is treated unfavourably due to their relationship with someone who has a disability. There could be an increased risk of constructive dismissal claims if the employee feels that they can’t work somewhere anymore because their employer refuses the leave.

Furthermore, carer’s leave should not be included in absence triggers for disciplinary action. Doing so could further increase the risk of tribunal claims. But it’s important that employers keep track of how much carer’s leave an employee takes to make sure they don’t exceed their entitlement of one week per year.

Managers with grounds to believe their employee is unreasonably requesting or taking carer’s leave can investigate their concerns and subsequently decide what action to take, if any.

There is no indication as to a timetable for introducing this new right, however, and the response document makes clear that legislation to introduce the day one statutory employment right will be brought forward “when parliamentary time allows”.

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