Carers Rights Day UK shines a light on the incredible work of unpaid carers and raises awareness about their rights. This year, it was on 20 November with the theme of ‘Know your rights, use your rights’, Jessica Ball, paralegal in the Employment Law team at law firm Sydney Mitchell explains the employment laws that affect and support unpaid carers.
Carer’s Leave Act
Under the Carer’s Leave Act 2023, anyone legally classed as an employee can take time off to help a dependent long-term care needs. AN employee has the right to take care leave from their first day.
To understand the rights, an employee must know their employment status, e.g., someone on a zero-hour contract is an employee and the Carer’s Leave Act 2023 applies.
Dependants
A person is an employee’s dependant if they are:-
- A spouse, civil partner, child or parent of the employee;
- Live in the same household as the employee (not including tenants, lodgers or employees);
- A person who relies on them for care.
An employee’s dependant has a long term care need if they:-
- Have an illness or injury (physical or mental) that requires, or is likely to require, care for more than three months;
- Have a disability for the purposes of the Equality Act 2010, or;
- Require care associated with their old age.
Period of leave
An employee who is a carer can take up to one week (5 working days) leave during any 12 month period.
Because an employee is entitled to a period of leave equal to their usual working week, an employee must review their position to determine how much time can be taken at once. For example, if the employee works 3 days a week, they can take 3 days of carer’s leave. If the employee works variable hours for part of the year, the amount of eligible carers leave is calculated by adding up the total hours worked in the previous 12 months and dividing it by 52 weeks.
Leave can be taken flexibly i.e. in half or full days.
Notice
As carer’s leave is intended for planned caring commitments, an employee must give their employer notice dependent on the amount of days leave they wish to take:-
- at least three days in advance, if requesting a half or single day of leave;
- at least twice as many days as the requested leave period if applying for two or more consecutive days’ leave, i.e., if the request is for two days leave, four days’ notice is required.
An employee does not have to put their request in writing or provide evidence of their dependant’s care needs.
If emergency leave is needed, employees are entitled to reasonable time off (see below).
Pay
An employer is not obliged to pay the employee for carer’s leave, but may choose to do so.
Alternative Leave
Employees may be entitled to alternative types of leave instead of time off for dependants. Equally, an employee could request alternative working arrangements under the right for flexible working requests.
Employees should review employment contracts to establish what alternative leave is available, and consider approaching their employer to discuss a solution.
Right to flexible working request
- Employees have the right to request flexible working, and this applies from day one of employment.
- The employer must handle the request reasonably and in line with the ACAS Code of Practice, and make a final decision, including any appeal, within a maximum of two months.
- The employer must accept the request unless there is a genuine business reason not to do so.
Reasonable time off for dependants in emergency situations
- Employees have the right to take ‘reasonable’ time off for emergency situations to care for their dependant.
- The employee should advise their employer they require emergency time off and provide an explanation as to why and how long they expect to be off.
Unpaid parental leave
- Parents have the right to unpaid time off work when they need to look after their children.
- To be eligible for parental leave, the parent must be classed as an employee and have worked for the employer for one year or more, and have parental responsibility for the child.
- Each parent can take up to 18 weeks of parental leave for each child until they are 18 years old. Leave can be taken in blocks of weeks to a maximum of 4 weeks a year for each child.
- Employees must give 21 days’ notice before the date they want to start a block of parental leave and provide their employer with the exact dates it will start and finish.
What can Employers do?
Employers could have a Carer’s Policy that clarifies their position on carer’s leave, who to approach to request carer’s leave, and whether the employee will be paid during it. They should signpost employees to the policy to they are aware of their rights.
Protection from Discrimination
The Equality Act 2010 protects against direct discrimination or harassment due to caring responsibilities on the grounds that carers are considered to be ‘associated’ with the person they care for, and who may be protected by law due to their age or disability.
From job applications to daily work life, employers are legally prohibited from discriminating against an individual due to their caring responsibilities, including rejecting a flexible working request.
Complaint to Employment Tribunal
Emma-Louise Hewitt, Partner and Head of the Firm’s Employment team regular advises on potential Employment Tribunal claims and adds “If matters cannot be resolved, the employee may consider making a complaint to the Employment Tribunal. An employee may do so if their employer has unreasonably postponed a period of carer’s leave, or prevented or attempted to prevent the employee from taking carer’s leave.” NOTE: an employer cannot refuse a request for carer’s leave but can ask the employee to take the leave at a different time if the employee’s absence would cause serious disruption to the organisation.
Get in touch
Jessica Ball and Emma-Louise Hewitt advise clients in all areas of Employment Law and act for employees and employers. To get in touch you can talk to us on 0121 667 1430 or send us an enquiry using our online enquiry form.
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