Carer’s leave finally becomes law

The Carer’s Leave Act 2023 was recently given Royal Assent which means the debating is over – the new employment right to time off for certain employees who have caring responsibilities has been confirmed.

As the law currently stands, there is no specific right to time off work for carers other than those which are also available to employees in other circumstances too, for example:

• Time off for dependants
• Unpaid parental leave
• Annual leave.

Further regulations are needed before we know exactly how the right to time off will work in law but it’s expected that statutory carer’s leave will be available from April 2024.

What is carer’s leave?

It is the entitlement for employees, regardless of their length of service, to take 5 days of unpaid leave per year in order to provide or arrange care for a dependant.

Qualifying employees will be able to take the time as half-days or full days. Unlike the current right to time off for dependants, it will be possible to book carer’s leave in advance, allowing employees with caring responsibilities greater flexibility when arranging their time.

Who is eligible for carer’s leave?

Qualifying employees are those who care for someone who has a long term care need which is defined as someone who has a disability under the Equality Act 2010, has issues relating to old age or has an illness or injury that will last or is expected to last for at least 3 months.

The relationship between the employee and this person will follow what is already in place for the right to time off for dependants, including a spouse/civil partner; child; parent; a person who lives in the same household (but is not a tenant, lodger or boarder) and a person who relies on them for care (eg an elderly neighbour).

Will carer’s leave be paid?

There is no obligation for employers to pay employees when they are on carer’s leave. However, organisations can choose to offer contractual pay if they choose to but this should be exercised consistently and in a non-discriminatory way.

Can employers refuse a period of carer’s leave?

The Act sets out that an employment tribunal claim could be made by the employee if the employer unreasonably refuses a period of carer’s leave. This indicates that it will be possible for employers to postpone carer’s leave but this must be in the realms of reasonableness. What is reasonable will be dictated by the circumstances and more guidance is awaited on what this may look like. As a guide, employers are permitted to postpone a period of parental leave that an employee wishes to take but they must allow it to be taken within a period of 6 months from the date requested. It remains to be seen how similar the postponement of carer’s leave will be to that of parental leave.

The regulations will set out how much notice an employee needs to give their employer to take carer’s leave. It is understood that no evidence of eligibility will be required.

What other claims can be made?

Employees will be able to make a claim if they believe their employer has prevented or attempted to prevent them from taking carer’s leave. Further claims will be set out in the impending regulations but it is likely that employees will be protected against dismissal or detriment for proposing to use or using their right to carer’s leave.