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Carer’s Leave: are the upcoming changes enough?

November 30, 2023

Last Thursday was Carer’s Rights Day, designed to help identify and raise awareness of carers across the country as well as to point them in the direction of information and support. Unpaid carers represent a large (and growing) portion of the population. Carers UK estimates that there are as many as 10.6 million unpaid carers, or 1 in 5 UK adults.

Speaking from personal experience, being a carer is hard for lots of reasons. It has a huge impact on your personal and work life with the need to juggle caring responsibilities and work, which is the focus of this blog, being one of them. You don’t need a lawyer to tell you that the impact of those responsibilities on the carer’s own daily life, not to mention their physical and mental health, could easily manifest in the workplace with issues around attendance, unexpected absence and more frequent requests for leave.

Employers need to be live to the issues around, and the impact of providing, unpaid care as, not only is there is a commercial incentive to do so, given the likely number of affected employees in the workforce, but there will soon be greater legislative obligations and protections in this area too.

Carer’s Leave Act 2023

The Carer’s Leave Act (the Act) became law earlier this year, although it does not come into effect until 2024 and we are waiting for further guidance and regulations in relation to its implementation.

Broadly speaking, the Act provides for carers to have a period of at least one week of unpaid leave to provide or arrange care for a dependant with a long-term care need. The dependant can be a spouse, civil partner, child, parent, someone who lives in the same household as the carer or someone who reasonably relies (not defined) on the carer.

The ability to use Carer’s Leave is limited to help those who have: (i) an illness or injury requiring care for more than three months; (ii) a disability for the purposes of the Equality Act 2010; or (iii) the requirement for care for a reason in connection with old age.

Despite the definitions, it is not expected that the carer will be required to provide evidence of their request for any leave and so they should not have to evidence to what extent their dependant relies on them or provide evidence of appointments, for example.

There will be no minimum service requirement either meaning Carer’s Leave will become a day one right. The carer will be able to take leave in half or full day periods. It is not yet clear but there is likely to be the requirement to give notice, similar in length to that required when requesting holidays, to the employer to utilise Carer’s Leave. That requirement for notice makes it clear that this is not intended to be emergency leave but rather for planned appointments or commitments.

Other protections?

In addition to this specific piece of legislation, more general statutory protections, which can also be utilised by carers, do exist but are limited. They include Dependant’s Leave (unpaid emergency leave) and unpaid Parental Leave (that obviously excludes carers not providing care to children).

Holidays are also frequently used by carers to help them with their responsibilities, which arguably goes against the purpose of holidays (rest) in the relevant legislation.

Frequently carers make flexible working requests either under the statutory procedure, which will also become a day one right (in addition to other changes) next year, or under their employer’s policy. However, the employer always has the option to refuse any request. I would however always caution employers to carefully consider a request before refusing to try as much as possible to minimise a discrimination claim where a protected characteristic may underpin the request. In other words, look at why the employee is making the request not just whether it can work on paper. Ignoring discrimination can be costly.

Does the law do enough for carers?

Some will argue that the law should go further. For example, the Act does not arguably address the unpredictability of caring, where appointments or issues often come up at the last minute. How can a carer give notice in those circumstances?  

Whatever the criticism, the adopted position appears to be that the legislation is a sort of half-way house to give statutory protection and some support to carers but without imposing too much of a burden on the employer. In other words, it is a start. But is it enough? Time will tell.

For now though employers should be reviewing and considering the impact of this on their policies and procedures given the changes in the year ahead. If you need advice in relation to this, or any other, issue then please get in touch with the Blackadders Employment law team, with offices throughout Scotland.

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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