The Carer’s Leave Act 2023 will provide a new statutory right for all employees from the first day of their employment to one week of unpaid leave each year to provide or arrange care for a dependent with a long-term care need. The Carer’s Leave Regulations 2024 are expected to bring this into force on 6 April 2024.

What will this entail?  

A “long term care need” is defined as:

  • an illness or injury (either physical or mental) that requires, or is likely to require, care for more three months; or
  • a disability under the Equality Act 2010; or
  • issues related to old age.

A “dependant” includes a spouse, civil partner, child, parent, a person who lives in the same household as the employee (other than an employee, tenant, lodger or boarder); or the wider catch-all provision, of a person who reasonably relies on the employee for care.

One week of a carer’s leave can be taken each year (regardless of the number of dependants an employee may have). The leave does not have to be consecutive and can be taken as individual or half days, up to and including one week.

If an employee wishes to take carer’s leave, they will be required to give notice to their employer specifying they are entitled to take carer’s leave, but they will not be required to provide evidence in relation to a request for leave. An employer may waive this notice requirement provided an employee is otherwise eligible to take the leave. The request to take leave does not need to be in writing. The notice which must be given to the employer must be either twice as many days as the period of leave requested, or at least three days in advance (whichever is longest).

An employer will not be able to decline an employee’s request for carer’s leave but may be able to postpone it by up to a month in certain circumstances; for example they reasonably consider that business operations would be unduly disrupted.

If an employee believes their employer has unreasonably postponed, prevented or attempted to prevent them from taking their carer’s leave then they will be able to bring a claim in the employment tribunal. A tribunal can make a declaration and award compensation which it considers “just and equitable” in the circumstances.

Should an employee be dismissed for a reason connected with them exercising their right to request or take carer’s leave this will be an automatically unfair dismissal. Employees returning from carer’s leave are entitled to come back to the same job as they were doing immediately before their leave. Employees will also have protection from detriment due to taking or seeking to take carer’s leave.

The revised ACAS  Statutory Code of Practice on Flexible Working reflecting these changes is due to be published sometime in 2024; while the Code is not binding on employers, it may be taken into account by tribunals when considering relevant cases. We are also expecting updated ACAS guidance at some point this year.

What should you do to prepare for these changes?

  • Familiarise yourself with the relevant definitions including “long-term care” and a “dependant”.
  • Think about how you will handle any personal data relating to caring responsibilities as well as any associated GDPR implications for the employee and the individual that they are caring for.
  • Consider whether existing policies and procedures will need to be amended or re-drafted to reflect the new change and make sure there is appropriate training and guidance in place.
  • Ensure the new right is reflected in HR administration/payroll systems.
  • Consider whether further support for the employee may be required or whether enhanced entitlement of the right should be provided, for example by increasing the amount of leave permitted or providing for some or all of it to be paid.
  • Remember that employees should be directed to other statutory and leave rights where time off is needed to meet other care needs falling outside the above regime (or any enhanced company provision), such as the statutory right to dependant’s leave and/or the statutory right to request flexible working, and contractual annual leave.

If you would like to discuss these changes or you would like advice on any other employment law matters, you can contact one of the Employment Team.