The new law on carer’s leave explained

New legislation regarding carer’s leave will provide employees with a right to take a week’s unpaid leave per year to care for a dependant. The new law is due to come into force on 6 April 2024. Below we outline what employers need to be aware of.

The right will be provided as a day one right to employees. Employees will not be required to provide evidence or explain how leave will be used to employers.

For what purpose can carer’s leave be taken?

Employees will be entitled to be absent from work for the purposes of carer’s leave where they satisfy the following criteria, being that they:

• Have a dependant with a long-term care need
• Want to be absent from work to provide or arrange care for that dependant
• Have not exceeded their entitlement, being one week’s unpaid leave per year.

Employees can take the week’s leave in half or full day increments.

The definition of ‘dependant’ will include a child, spouse, civil partner, parent, a person who lives in the same household as the employee (where this person is not a lodger, boarder, tenant or employee) and any person who reasonably relies on the employee for assistance in the event of illness or injury.

A ‘long-term care need’ is defined as an illness or injury (whether 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 relating to old age.

Who can take carer’s leave?

The right to take carer’s leave will be provided to all employees. This is a ‘day one’ right meaning that employees will not be required to satisfy any minimum period of continuous service to exercise the right.

Employees are protected from suffering any detriment as a result of taking or being likely to take the leave.

Employees are also empowered to bring claims for unfair dismissal if the employee is dismissed for the reason of taking or being likely to take the leave. Employees will also be entitled to return to the job that they were doing immediately before their absence.

Considerations for employers

Employers will not be able to deny requests to take carer’s leave but will be able to postpone the period for which the leave is taken, if it can establish that approving the leave request would cause undue disruption to the business.

Employers must provide the employee with a written counter-notice agreeing another date within one month of the requested date for the leave and setting out the new date of the leave and the reason for the delay.

Employees must provide employers with notice that they intend to take leave. The required notice period is either twice as many days as the period of leave required, or three days, whichever is greatest. The notice does not need to be in writing and an employer cannot require evidence in relation to the request before granting the leave.

The latter point may concern some employers about the potential for mis-use of the right. It is hoped that with the leave being unpaid, there is little incentive to abuse carers leave (i.e. why not just call in sick?).

Actions for employers

Ahead of this new right coming into force in April 2024 employers should consider the following:

• Implementing a carer’s leave policy, to ensure that employees and managers are informed of the new right and that the approach of management towards the new right is consistent
• Creating a form for employees to request carers leave, to include a self-certification that they are eligible and will use the leave for its intended purpose
• Implementing a system to keep a record of the amount of carer’s leave taken by employees
• Providing training for management on the new right and how requests for carer’s leave should be handled.