Caring Times

Catherine Shepherd and Kath Sadler-Smith, Knowledge Lawyer Directors at international legal practice Osborne Clarke explore the new statutory right to carer’s leave and what it means for employers.

This month has seen a number of employment law reforms coming into force, including a new statutory right to one week’s carer’s leave. The leave can be taken to care for or arrange care for a dependant with a “long-term care need“.

The increasing number of individuals taking on caring responsibilities has been well publicised against a backdrop of people living longer and working longer. Analysis of Census 2021 data by Carers UK showed that there are around 1.6m people in full-time employment in England and Wales who were also looking after someone who is elderly, disabled or with a long term health condition and 948,000 people in part-time employment were also unpaid carers. Previous research by Carers UK has shown that around 600 people a day give up work to care due to a lack of flexibility and support.

The new right to carer’s leave is therefore a welcome addition for many employees who find themselves needing to balance their working and domestic responsibilities.

What does the new right provide for?

On the face of it, the new right is broad in scope and looks designed to bring a wide range of employees within its ambit and to provide flexibility in the circumstances in which leave can be taken. For example, there is no requirement for an employee to have a specific period of service before being eligible to take statutory carer’s leave and “a dependant” for whom leave can be taken to care for is defined to cover not only an employee’s spouse, civil partner, child or parent, but also a person living in the same household as the employee (except for specific exceptions) or any other person who would reasonably rely on the employee to provide or arrange care. There is also no statutory definition as to what care (or arrangements for care) needs to be provided to qualify for the statutory leave; for example, the right could cover not only providing physical support in attending medical appointments but also emotional and more administrative support, such as attending financial meetings, providing companionship etc. Employers should note that the statutory provisions specifically prohibit an employer from requesting evidence from the employee of the reason they are taking leave.

Limitations to the new right

However, despite the positive aspects of this new right, a spotlight has also fallen on its limitations. The statutory right is only to one week carer’s leave (based on an employee’s normal working week) in any 12 month rolling period – this is in respect of all dependants an employee may find themselves supporting in that period; for an employee who supports more than one dependant, such as elderly parents and in-laws, other avenues to balance any support required alongside their working responsibilities may need to be explored.

Significantly, the new right is also unpaid; for many employees this may in reality mean it is not financially viable for them to take unpaid carer’s leave and therefore that they are left with the same options as now – to take paid annual leave to meet their caring obligations or to look at other alternatives, such as making a statutory flexible working request, moving onto a part-time working arrangement or for some, taking the time and reporting it as sick leave.

So what should employers be doing now?

Employers must now ensure that managers and employees are familiar with the statutory right; they will need to understand the eligibility criteria, notice requirements and the specifics on how leave can be taken (the statutory provisions provide that leave can be taken in minimum blocks of half days).

This information should be set out clearly in a dedicated carer’s leave policy or other wider leave policy and communicated to employees. It will be important to ensure that a clear process is in place for employees to make a request and that managers are consistent and fair in their approach to dealing with requests; managers should be made aware of the risks of inadvertently discriminating against an employee when dealing with a request, particularly given that requests are likely to be for care of older and/or disabled dependants and, given the changing age demographic in the workplace, may be made by older members of the workforce supporting elderly relatives. Practically, processes should be  put in place to track and record carer’s leave requested and taken to help monitor compliance, as well as managing absence effectively. Employers may also want to require employees to sign a written declaration confirming their entitlement to the statutory leave when making their request.

Employers may consider enhanced right

Given the limitations on the statutory right, employers may also want to use the opportunity of its introduction to consider whether any enhanced right will be provided, for example, providing for the leave to be paid or for a longer period of leave to be taken in a 12 month period. It will also be important to understand how carer’s leave sits alongside other statutory or company leave rights; for example, where an employee needs to deal with an unexpected or sudden situation involving a dependant, the statutory right to dependants leave can be used. Although this is unpaid, it may mean that an employee can still utilise their statutory right to carer’s leave once the immediate situation has resolved. Likewise, an employer may already provide some form of compassionate leave which may, to some extent, cover some of the situations in which the new right to statutory carer’s leave entitlement would be utilised. Parents looking for leave to support general childcare responsibilities, or where they require more time off than the one week’s carers leave to support a child with a disability, can consider using the existing statutory right to unpaid parental leave where they are eligible to do so.

Employers may also expect to see more statutory flexible working requests from employees which seek to enable them to balance their domestic and work responsibilities more effectively long term. Since 6 April there is now no longer a requirement for an employee to have 26 weeks’ continuous service before making a request; there are also some changes to the process to encourage dialogue between employer and employee.

Looking longer term

It is clear that the new statutory right is a step in the right direction, but employers should be alert to the fact that we may see further legislative reforms down the line. The cost of living crisis and difficulties in individuals obtaining social welfare support means that this is an area which will remain high on political and individual agendas. A General Election is due later this year (or at the latest January 2025) and pressure continues to be applied to the political parties in the UK to include increased commitments to carer’s leave in their manifestos. There is a risk that carer’s leave will only benefit those with more financial stability who can afford to take unpaid time off without facing immediate financial hardship and those with jobs providing greater flexibility rather than those in lower paid work with more rigid schedules where taking the leave may result in friction in the workplace. Employers will need to consider how employees can be reasonably supported in their care commitments regardless of their socioeconomic situation and ensure they do not suffer any less favourable treatment as a result of taking leave.

Whilst carer’s leave is a new right to benefit employees, the upsides of providing this flexibility for employers are evident; Carer’s UK reports that providing carer’s leave brings increased productivity, improved retention rates and reduced recruitment costs; it is also likely to reduce sickness absence rates and provide a more attractive place to work for an increasingly age diverse workforce.