The Carer's Leave Act 2023

There is currently no statutory right to carer's leave in the UK, however it is going to be introduced via the Carer's Leave Act 2023. Although the right is not expected to come into force before April 2024 and there is still a lot of detail to be published, it is important for employers to be aware of it for future policy reviews.

Current rights for carers

As there is currently no statutory right to carer's leave, employees have to use other kinds of leave if they need time off to manage their caring responsibilities. This could include the following:

Flexible working: All employees with 26 weeks’ service are entitled to apply for flexible working. This might involve a change in working hours or days or assist a carer to work from home.
Time off for dependants: Employees are entitled to a reasonable amount of unpaid time off work to deal with particular situations affecting their dependants, however this is only for emergency situations and cannot be used for planned or foreseen caring responsibilities.
Family leave: If the employee is a parent, they may be entitled to maternity leave, paternity leave, shared parental leave or adoption leave in the year following the birth or adoption of a child.
Parental leave: Eligible employees can take up to 18 weeks’ unpaid parental leave for each child for the purpose of caring for that child up to their 18th birthday.
Annual leave: Employees could use some of their holiday entitlement to help with caring responsibilities.

While these rights can be used to fulfil caring responsibilities, none are tailored to the circumstances. With an estimated two million employees who are carers in Great Britain there is a gap in the law which the Carer's Leave Act 2023 aims to fill.

The terms of the Carer's Leave Act 2023, which was passed in May, are summarised below although note that much of the detail is not yet available and will be published in due course via separate regulations.

Who can take carer's leave?

There is going to be a new statutory 'day one' right to unpaid carer's leave for employees who are providing or arranging care for a dependant with a long-term care need.

'Dependant' is restricted to a spouse, civil partner, child or parent of the employee; a person who lives in the same household as the employee (although not if they are the employee's boarder, employee, lodger, or tenant); or a person who reasonably relies on the employee to provide or arrange care.
A 'long-term care need' covers those who have an illness or injury (physical or mental) that requires, or is likely to require, care for more than three months; have a disability in terms of the Equality Act 2010; or, importantly giving the ageing population, require care for a reason connected with their old age.

What right to time off will carers have?

The amount of leave has not yet been finalised but it looks likely that it will be one week's leave during any 12-month period.
The statutory right will be to unpaid leave, although some employers might choose to enhance it to a form of paid leave.
The employee must use the leave to provide or arrange care for the dependant.
It is not yet clear if there is a right to one-week unpaid leave per employee or per dependant, which is something that will be addressed by the regulations.
Carer's leave will be in addition to the current statutory rights listed above.

How can carer's leave be taken?

The details of how the entitlement can be taken have not yet been specified, however, it appears that:

The intention is to allow employees to take leave in full or half day blocks, and to choose whether to use their total entitlement via one continuous block of leave or multiple shorter periods through this year. It would be good practice for employers to set up a system to keep track of how many days an employee has taken as carer's leave.
Given the leave is designed to be used for anticipated caring commitments, employees will have to give notice of their intention to take the leave. The notice requirements may be specified in future regulations but, if not, individual employers will be able to set out how much notice they require etc.
Employees will not have to provide evidence of entitlement before leave is granted.

What this means for employers

Although employers will not be able to refuse a request, they will be able to postpone an individual taking carer's leave so long as doing so is 'reasonable' (no detail is available yet as to what is meant by reasonable). Importantly, employees will be protected from detriment or dismissal in relation to requests for carer's leave, with any dismissal on these grounds being automatically unfair.

Employers will, in due course, need to update their policies and handbooks to reflect the new entitlement to carer's leave but should hold off doing so until more information is available via regulations. A carer's leave policy could either be a stand-alone policy or form a new section of an existing policy on time off work, and could set out details of:

Who is entitled to carer's leave
How much leave can be taken and what is has to be used for
How much the employee will be paid during carer's leave (the statutory right is to unpaid leave but some employers might decide to enhance it)
What notice is required
The employer's right to postpone a request to take leave
The fact that it will be a disciplinary offence to take leave otherwise than in accordance with the legislation.

Employers might also want to create a self-certification form for employees to complete declaring they meet the criteria under the Act and will be using the rights it provides for.

Please get in touch should you wish to discuss anything raised in this blog, which will be updated when the regulations are published. Workbox by Brodies users can keep up to date with these, and other, employment law and HR developments via the What's New? page.