01 November 2021
Danny Done, managing director of Portfolio Payroll, provides detail around the new entitlement to leave available to working carers
The government has confirmed its intention to introduce carer’s leave as a new statutory employment right. This will allow employees with caring responsibilities to take time off from work to focus on the person (or people) they care for. Carer’s leave entitlement will be as important as all other time off employees currently get. For example, maternity leave, shared parental leave, annual leave and time off for dependants.
Carer’s leave will be a day one right for all employees, meaning there is no minimum amount of service required before staff can request it. Eligible employees can take up to one week (five working days) of leave per year. The leave can be taken flexibly, either in individual or half-days, up to a block of one week.
There is no obligation for employers to pay those who are on carer’s leave – the statutory entitlement is unpaid for eligible employees, but organisations have the option of offering contractual pay. Details of this should be outlined in the employer handbook and communicated with staff. It is important that any enhanced payments are offered consistently, ensuring all staff are treated fairly and equally. Doing so minimises the potential risks of constructive dismissal or discrimination claims.
The right will only apply to people with employee status, so workers and self-employed individuals will not be included. These employees must be unpaid carers, and the person they provide care to must be someone with a long-term care need. For example, a person with a long-term illness or injury covered as a disability under the Equality Act, or issues relating to old age and terminal illness. The relationship between the employee and this person will follow what is already in place for the right to time off for dependants. Namely, a spouse or civil partner; child; parent; person who lives in the same household (but is not a tenant, lodger or boarder); or a person who relies on them for care (i.e. an elderly neighbour).
There is no set date for the entitlement’s implementation. However, the government’s consultation response document outlines that legislation will be introduced to make carer’s leave a statutory right as soon as Parliamentary time allows.
Whilst this new legislation is very similar to what is already available for time off for dependants, carer’s leave is a brand-new entitlement that employers need to factor in as an additional type of leave and know how it should be managed. Organisations should consider providing additional training to their managers and human resource (HR) teams, and be prepared to update policies and procedures and then communicate these changes with the workforce. They will need to assess how requests for carer’s leave will be submitted and approved, review staffing levels to ensure there are enough people in place to cover those who go off on carer’s leave and implement systems to manage carer’s leave.
Managers already aware of employees with caring responsibilities should consider that they may request unpaid carer’s leave, so should be prepared to accommodate it.
Refusing carer’s leave or failing to comply with the new statutory entitlement could lead to costly tribunal claims for organisations. As well as breaching employees’ statutory rights, there could be the risk of discrimination (including associative discrimination) claims if the employee is placed at a detriment for needing to take carer’s leave. Associative disability discrimination claims can be made when an employee is treated unfavourably due to their relationship with someone who has a disability. There could be an increased risk of constructive dismissal claims if the employee feels that they can’t work somewhere anymore because their employer refuses the leave.
Carer’s leave shouldn’t be included in absence triggers for disciplinary action. Doing so could further increase the risk of tribunal claims. But it’s important that employers keep track of how much carer’s leave an employee takes, to make sure they don’t exceed their entitlement of one week per year. Managers with grounds to believe their employee is unreasonably requesting or taking carer’s leave can discuss their concerns with them, and subsequently decide what action to take. Placing someone at a detriment, including giving them a warning or dismissing, can lead to unfair dismissal and discrimination claims. However, if a full process has been completed and there are unsatisfactory explanations for utilising statutory carer’s leave, employers can follow their usual disciplinary policies to determine the best outcome.
In situations where statutory carer’s leave is not appropriate to use – for example, if the person only has a short-term care need, or does not meet the definition of a dependant – organisations should not automatically rule out other types of leave.
Time off for dependants can be used in emergency situations, or compassionate leave can be used to allow employees to be with those who are seriously ill or injured, without having a wider involvement in providing their care. If the need for the leave does not fall into any formal categories, employers should be reasonable in authorising unpaid leave to support staff. Doing so helps reduce the risk of unplanned and long-term absences and contributes towards increased retention, motivation and productivity.
Featured in the November 2021 issue of Professional in Payroll, Pensions and Reward. Correct at time of publication.