There are several significant employment law updates to family-friendly rights in 2024, which are all aimed at providing better support and flexibility for both employees and employers. Alongside extended redundancy protection for employees on maternity, adoption, or shared parental leave, and changes to statutory paternity leave, new rights for carers have been introduced, granting them unpaid time off to attend to their caregiving responsibilities.
This FAQ guide aims to clarify these changes and provide practical guidance for employers navigating these adjustments. If you would like advice on how to put these changes into practice across your organisation, or in dealing with any requests, our friendly and highly experienced employment solicitors are on hand to provide tailored advice.
Contents:
- What is the new right to carer’s leave?
- When does the new right come into force?
- How much leave can employees take?
- Who can take carer’s leave?
- What counts as a ‘dependant’ and a ‘long term care need’?
- What notice do employees need to give?
- Can we ask an employee for evidence of the leave?
- Do we need to pay employees who take carer’s leave?
- Can we refuse a request for carer’s leave?
- What rights do employees have during and after carer’s leave?
- What can we do to prepare for the new right to carer’s leave?
What is the new right to carer’s leave?
Regulations have introduced a new right for employees to take unpaid carer’s leave. Employees who qualify for this right will have a legal right to take time off work to provide or arrange care for a ‘dependant’ with a ‘long-term care need’.
When does the new right come into force?
The new right to carer’s leave comes into force on 6 April 2024. From that date, employees who qualify for the right will have a statutory right to request and take unpaid carer’s leave.
How much leave can employees take?
In total, employees who qualify for carer’s leave can take a maximum of one week in a rolling 12-month period. A ‘week’ means the length of time an employee usually works over 7 days. For example, if an employee typically works five days a week, they can take five days of carer’s leave in a rolling 12-month period. Part-time employees who only work, for example, three days a week, can take three days of carer’s leave.
Employees can choose to take the week in one block, or they can choose to take half days or individual days across the rolling 12-month period up to a block of one week. In other words, there’s no requirement that the leave be taken consecutively - it can be spread out across the 12-month period.
Who can take carer’s leave?
Employees will qualify for the right to take carer’s leave if:
- They are an employee based in England, Wales or Scotland (ie not a contractor or one of your supplier’s personnel);
- They have a ‘dependant’ with a ‘long-term care need’ (see below for definition); and
- They have given you the required notice to take carer’s leave (see below for notice requirement).
There’s no requirement for employees to have any minimum length of service with your business to qualify for the right to carer’s leave. If they qualify for the right, they can take it from day one of their employment.
What counts as a ‘dependant’ and a ‘long term care need’?
A ‘dependant’ means any of the following:
- The employee’s spouse, civil partner, child or parent;
- Someone who lives in the same household as the employee, other than boarders, employees, lodgers or tenants; or
- Someone who reasonably relies on the employee to provide or arrange care.
A ‘long-term care need’means any of the following:
- The dependant has a physical or mental illness or injury that requires, or is likely to require, care for more than three months;
- The dependant has a disability under the Equality Act 2010 (ie a physical or mental impairment that has a substantial and long-term negative effect on their ability to do normal daily activities); or
- The dependant needs care for a reason connected with their old age.
What notice do employees need to give?
Employees need to give you twice as many days as the intended period of leave, or three days, whichever is greater. For example, if an employee wishes to take a block of four days, they will need to give you at least eight days’ notice of their intention to take carer’s leave. Or, if they intend to take only one day’s carer’s leave, they would need to give you at least three days’ advance notice.
The notice doesn’t have to be given in writing, although employees can make a request in writing if they want to. That means employees can request carer’s leave verbally and that would still count as valid notice.
As an employer, you’re allowed to waive the notice requirement where other requirements have been met. You might choose to do this on compassionate grounds where the employee’s dependant has more urgent care needs. If immediate leave will be disruptive to your business, you may wish to insist on the notice requirement.
Can we ask an employee for evidence of the leave?
No, you are not allowed to ask for evidence about the employee’s entitlement to carer’s leave. On balance, that’s probably a good thing for both employers and employees. From the employee’s perspective, they may be reluctant to share personal information about a dependant’s health condition. From your perspective as an employer, this means you don’t have to process sensitive third-party personal data, minimising your data privacy implications under the GDPR.
Still, it’s natural to wonder why an employee is requesting leave when faced with a time-off request that isn’t related to holiday. In terms of operationalising requests, we are advising our clients to treat carer’s leave similar to self-certification for sick leave. That means employees would self-certify the fact they have a dependant with a long-term care need and that they intend to take carer’s leave, avoiding the need for evidence.
Do we need to pay employees who take carer’s leave?
No, the right to carer’s leave is a right to unpaid time off to care for a dependant with a long-term care need and you do not need to pay them. It’s open to employers to choose to offer pay as an enhanced company benefit, or on a case-by-case basis at their discretion, but there is no legal requirement to pay for carer’s leave.
Can we refuse a request for carer’s leave?
No, it is not possible to refuse a request, but you can postpone the carer’s leave period. There is a bit of process that goes into postponing carer’s leave, but in short you will be able to postpone the leave where all of the following apply:
- You reasonably consider that the operation of your business would be unduly disrupted if you allowed the leave during the requested period;
- You allow the employee to take a period of carer's leave of the same duration, within a month of the period initially requested; and
- You give the employee written notice within seven days of the initial request, setting out the reason for the postponement and the agreed dates on which the leave can be taken.
Given that carer’s leave is a right to a relatively short period of time off and that employees will request it because of a sensitive personal situation, we expect few employers to postpone carer’s leave in practice in all but the most extreme cases.
What rights do employees have during and after carer’s leave?
Nothing changes to an employee’s terms and conditions during carer’s leave other than the fact they have no right to pay. That means they remain employed and continue to benefit from all of their terms and conditions, except for pay.
Employees are also protected against detriment and dismissal as a result of requesting or taking carer’s leave. As such, it will be good practice to exercise caution when making employment related decisions shortly after a period of carer’s leave (eg performance reviews, promotion decisions, redundancy selection etc) to reduce the risk of detriment and dismissal related grievances or claims.
What can we do to prepare for the new right to carer’s leave?
In respect of the new right to carer’s leave, we recommend you do the following:
- Build systems and processes. Because employees need to qualify for the right (ie have a dependant with a long-term care need) and provide notice, a self-certification system is likely to be the best way to operationalise the new right. A simple online self-certification form would be enough, allowing you to then store the request in your record-keeping systems.
- Update policies and train managers. Time-off policies should be updated to reflect the new rights and your internal process for making requests. Our employment solicitors are on hand to assist with the necessary adjustments to your policies and handbooks. You might also consider training line managers about the new rights to ensure they handle conversations about time off requests in a way that does not expose you to legal risk.
- Communicate the new right to employees. There’s no legal obligation on you to communicate the new right to carer’s leave, but making employees aware of the right and the benefits for employees could boost employee sentiment and your reputation as a compassionate employer. Communicating the new rights also shows you are proactive about your HR practices and will help set expectations about how employees should make requests.
- Keep records. Once you’ve built your system for making requests, you should store the data in accordance with your data retention policies. This will allow you to track the number of days being taken and the fact that it relates to carer’s leave.
To help ensure your business is compliant with the latest employment legislation, we offer a fixed fee HR Compliance Audit, which can be a useful starting point to help identify any missing or out-of-date policies and documents. If you’re planning HR and management training sessions within your business to keep them informed of the latest changes, our employment team can support you with this too.
