From 6 April 2024, employees will have a statutory right to one week’s unpaid leave to care for a dependant with a long-term care need. The Carer’s Leave Regulations 2024 have now been published in draft form and provide the details about how this new right will work in practice.
The definition of “dependant” aligns with how the term is used to determine an employee’s right to take time off for dependants. This includes a spouse, civil partner, child, parent, anyone living in the employee’s household (excluding employees, tenants, lodgers, or boarders), and anyone who reasonably relies on the employee for care.
There is no minimum service requirement to take advantage of Carer’s Leave. As with other statutory leave entitlements, employers cannot penalise any employee choosing to take advantage of carer’s leave. 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.
A “long-term care need” is defined as a physical or mental illness or injury 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.
Although the Carer’s Leave Act allows for regulations to specify which activities qualify as “providing or arranging care”, the current draft regulations do not include such limitations. This suggests that employees have the flexibility to determine if they are providing or arranging care for a dependant (assuming they meet the basic eligibility for the leave).
One week’s leave is the maximum any employee could be entitled to, irrespective of how many dependants an employee has.
Employers are not able to require an employee to evidence their entitlement to the leave.
The key procedural requirements for taking Carer’s Leave are:
- Employees 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 rolling period of twelve months.
- Employees are required to provide notice which is either twice the length of time being requested, or three days, whichever is the longest. The notice must include the fact that the employee is entitled to take carer’s leave and the number of days that will be taken. It is open to employers to waive the notice requirement provided the employee is otherwise eligible to take carer’s leave. Notice does not need to be in writing.
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 on which the leave can be taken. The employee must be allowed to take the requested leave within a month of their original request.
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. Feel free to contact our solicitors if you need further clarity, as an employee or an employer, about the details of the Carers Leave Act 2023.
Nicholas Febrer is a employment law solicitor here at DPH Legal. Nicholas has experience with a range of contentious and non-contentious employment disputes. Acting on behalf of employer clients, he advises on business immigration, redundancy situations, and consultancy agreements as well as regularly drafting employment contracts, settlement agreements, staff handbooks, and letters to employees engaged in disciplinary proceedings. Nicholas is a member of The Law Society and The SRA. To contact Nicholas, visit the Contact Us page. For media enquiries: info@dphlegal.com