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3 ways to support carers in the workplace (and the reasons why you should)

March 6, 2024

There are many working people who are unpaid carers. I am one of them and, while I write this blog with my professional hat on, I cannot help but be influenced by some of the feelings I have as a carer.

Being a carer can be both hard work and stressful and often the boundaries of the role creep into work. According to research by Carers UK in 2019, one in seven people in the workplace are juggling work and care. Moreover, 2022 figures by the same organisation reveal that 75% of employed carers worry about continuing to juggle work and care.

However, work for many is a part of their identity and where they thrive. Being a carer can change a little of your personality and how others see you, and so the ability to come to work and absolutely boss what you do is a great way to maintain a little of who you are and the self-esteem that comes alongside that. Work can be very important in helping carers feel like they are not consumed by their caring role.

With the number of people who provide a caring role likely to grow, and given the proportion of the workforce they represent, employers need to be aware of how to support carers in the workplace. There are arguably both employee relations and commercial reasons to do so.

1. Carer’s Leave

If you have followed the developments in this area, you will know that from 6 April 2024, the Carer’s Leave Act 2023 comes into force. Broadly speaking, the Act provides for carers to have a period of at least one week of unpaid leave each year to provide or arrange care for a dependant with a long-term care need.

You can look at an earlier blog here to get further details, but some of the key points to remember are that this is not intended to be emergency leave. In addition, some notice similar to that given for holidays will be required and the carer is not expected to evidence their request or eligibility. There will also be no minimum service requirements making this essentially a ‘day one’ right.

Clearly this is a welcome step forward in recognising that carers need some additional support and shouldn’t have to eat into holiday entitlement to carry out the functions of their role. Notwithstanding that, it is unpaid which arguably may deter some employees from using it over (paid) holidays and the fact that it has to be booked in some fashion means it only really suits those known elements, for example, fixed appointments. But many carers will deal with often unexpected requests on their time and this leave arguably does not assist them.

2. Flexible working

There is a lot out there about flexible working requests and how the statutory regime is changing. If you want to read more then click here.

Essentially, the process is changing from 6 April 2024 to make requesting flexible working a day one right (at the moment 26 weeks’ continuous service is required) and to make the process slightly easier.

Flexible working is clearly going to be important to carers. The question for employers is, how do they manage this? What if the request cannot be accommodated?

There remains the right to refuse the request to work flexibly on one of the eight statutory grounds and while there is no technical need to evidence the refusal (only that the employer reasonably believes that one of the grounds applies), having that evidence if refusing a request will assist in relation to the third consideration below.

3. Discrimination

While discrimination is a vast topic, in this context the concept of discrimination by association is particularly relevant. Many of you who regularly read our blogs will know that in general to bring a discrimination claim under the Equality Act 2010 you have to possess one of the nine protected characteristics. However, where there is discrimination by association, the person bringing the claim does so not based on a protected characteristic of their own, but on a characteristic of another.

Initially it was thought that this could only apply to direct discrimination. This is where, without getting too technical, the person does not need to show that they have the protected characteristic on which they are seeking to rely, only that they have suffered less favourable treatment because of a characteristic of someone with whom they are associated. For example, an employee is the primary carer for their disabled child and has frequent time off work to take the child to medical appointments related to their disability. The employer appears to resent the level of absence caused by the care need and eventually dismisses the employee.

But more recent case law has introduced the concept of indirect discrimination by association. For example, an employer has a policy that does not allow employees to work from home. This requirement to work in the office at all times could place a particular protected group (such as those with a disability) at a particular disadvantage compared with those not in the protected group, but it could also place those associated with the individuals in the protected group at the same disadvantage, for example any carers of those disabled people.

More importantly, there is now a change to the Equality Act which came into force on 1 January 2024 – which incorporates this principle into the UK law of indirect discrimination.

For the purposes of this blog, this essentially means that someone can bring an indirect discrimination claim where they don’t have a protected characteristic but because of a provision, criterion or practice (PCP) of the employer, which is applied to everyone including those with and without the characteristic, they have suffered substantively the same disadvantage as those with a protected characteristic.

We don’t have any decisions since this has come into force and it will be interesting to see what the introduction of the new provisions in the Equality Act will bring but for carers this change could mean that they could pursue discrimination claims without ever having any protected characteristic. As far as indirect discrimination claims are concerned, employers have the ability to argue objective justification and it will be interesting to consider how employers might do this in light of these changes.

The examples given here are illustrative. Please seek legal advice about this if you are not sure because, as with all discrimination issues, the devil is in the detail.

4. Communication

I know I said three ways in the title but this one is really short. The best way to avoid issues and support carers is to have a good communication dynamic in your organisation.

That way you can identify problems early, have sensible discussions about if and how you can help and hopefully avoid problems for the future. Show carers that you care and the benefits to your organisation will, I am sure, be huge.

If you want advice on how to update your policies or practices to include the changes highlighted above, or in relation to any other issue, please contact the Blackadders Employment Team.

Nicola Burns

Nicola Burns

Director of Operations

Marketing Team

+44 1382 342217

The opinions expressed in this site are of the author(s) only and do not necessarily represent the opinions of Blackadders LLP.

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