Dementia and the rights of carers in the workplace

In this next edition of our Dementia in the Workplace series, we look at the rights of employees who act as unpaid carers, and the obligations employers have in relation to them.

It is thought that prior to the coronavirus pandemic five million people in the UK provide unpaid care to elderly or disabled family or friends. The Alzheimer’s society estimates that over 670,000 people in the UK act as primary, unpaid carers for people with dementia, around half of whom are thought to be juggling work with their care responsibilities.

Disability discrimination

As discussed the previous edition of our series looking at dementia in the workplace, the Equality Act (EqA 2010) provides protection for workers who have a disability, but the extent to which it provides protection for workers who care for disabled persons outside of work is not quite as obvious. After all, the worker in this scenario is not disabled.

A pre-EqA 2010 European Court of Justice case held that “discrimination law is there to combat all forms of discrimination, including those connected to protected groups of people”.

The EqA 2010 formalised this principle by outlawing discrimination by association. This provides protection from disability discrimination for a non-disabled employee because of their association with a person who is disabled.

An employer who treats an employee less favourably because of the disability of someone associated with the employee, for example because the employee’s father is disabled, commits direct disability discrimination.

The same principle applies to harassment. An employee who mocks another’s disabled family member, thus creating an intimidating or hostile environment at work, commits harassment related to a disability.

This protection applies to recruitment decisions too. An employer who decides not to take on a job applicant because they have caring responsibilities for an elderly parent, and the employer is concerned about them taking short notice absence, commits direct disability discrimination.

We recommend that employers review their equal opportunities training and policies to ensure that employees understand the concept of discrimination by association and how this might apply to colleagues with caring responsibilities.

Time off for dependents

All employees are entitled to take unpaid time off in order to deal with emergencies involving dependents.

The right provides for a ‘reasonable’ amount of time off to deal with an ‘immediate crises’ involving a dependent who is a spouse, civil partner, child or parent (or other person who lives in the household with the exception of lodgers or similar).

What is to be considered a reasonable amount of time off will be determined by the facts of the particular circumstances, but it is expected that in most cases no more than a few hours or, at most, one or possibly two days would be regarded as reasonable to deal with the particular problem which has arisen.

This right is not designed for individuals to provide planned care for dependents such as taking them to a medical appointment, but for when unforeseen circumstances arise such as:

• To provide assistance if a dependent has suffered injury/illness/assault;
• To make care arrangements for a dependent;
• In consequence of a death of a dependent;
• To deal with the unexpected disruption, termination, or breakdown of arrangements for care; or
• Unexpected incidents involving the employee’s child during school.

Employee must tell their employer as soon as reasonably practicable the reason for their absence and how long they expect to be away for. Whilst this notice does not need to be in writing, it needs to provide their employer with enough information for them to be satisfied the statutory right is being engaged.

In relation to employees with caring responsibilities for individuals with dementia, this right is most likely to become useful when alternative caring arrangements have become disrupted, and whilst a few hours is deemed reasonable in most scenarios there is no upper time limit to the amount of time that can be taken off.

Any disruption or inconvenience to the employer’s business is not to be taken into account when considering the amount of time that is reasonable. Therefore if planned care for the individual falls through, it may be reasonable to take a day or two off to arrangement alternative care.

It is recommended that employers have clearly defined policies addressing this type of leave to ensure employees know exactly when the right can be exercised, who should be notified, and the penalties for abusing this right. Businesses can also be penalised for refusing employees permission to exercise this right, or as discussed previously for discriminating against an individual exercising this right in relation to a dependent with a protected characteristic. Employers risk claims of unfair dismissal and risk the employment tribunal awarding compensation if they unreasonably refuse an employee trying to legitimately exercise this right.

Additional week off for carers

There have been recent proposals to extend the rights available for individuals providing unpaid care to others. Throughout 2020 a consultation has taken place exploring the proposed idea of providing carers with an extra week of unpaid time off.

The new right, as proposed, aims to give individuals flexibility to provide care during regular working hours and would apply to employees only. The relationship required between the employee and the person cared for would be broadly similar to the kind required under Time off for Dependents as discussed previously, and the care need would need to be relating to physical or mental health problems, disability or issues relating to old age where the care is likely to last for a longer period of time “such as six months or a year”.

Due to the ongoing issues relating to COVID-19 and Brexit, it appears that progress on this proposal has halted with no further announcements following the closure of the consultation in August 2020.

However, for some further indication of what this law could look like other points raised in the consultation are:

• There is no expected period of qualifying service to entitle an employee to exercise this right;
• The type of care required is likely to be broad, and may cover; providing personal support, providing practical support, helping with official or financial affairs, or providing personal and medical care;
• It is expected that the provision of childcare or temporary support will not be covered;
• The leave would be pro-rated for part-time employees;
• Whether or not notice would be required to request the leave, and if so for how long, was one of the big issues the consultation was seeking views on; and

The charity Carers UK welcome the proposed law, however they do suggest it would be even more effective if the leave was paid, with longer periods of care available to be unpaid if necessary as it is thought over 500,000 people in the UK have left jobs to care for others in the two years prior to the coronavirus. This has been exacerbated by the effects of the pandemic and could mean that the new right is indeed different to the proposed version that was consulted on. Only time will tell how and when this new right will be officially introduced.