As flagged in our legal roundup article for 2024, employees in England, Scotland and Wales will have a statutory entitlement to take one week of unpaid carer’s leave from April 6, 2024 onwards.

This statutory entitlement has been implemented through the Carer’s Leave Act 2023 and Parliament has published a draft of the Carer’s Leave Regulations 2024, which has provided employees and employers with further details and a better understanding of how the entitlement will work in practice.

What is carer’s leave and who is eligible to take it?

Under the new laws, employees will be granted the statutory right to one week of unpaid leave within each 12-month rolling period to provide or arrange care for a dependent with a long-term care need.

A person will be a ‘dependent’ of an employee if they are a spouse, civil partner, child or parent of an employee, an individual living in the same household as the employee (but who is not an employee, tenant, lodger or boarder), or anyone who is reasonably reliant on the employee for care.

Additionally, an individual will be considered to have a ‘long-term care need’ if they:

• Have an illness or injury (whether physical or mental) that requires or is likely to require care for more than a 3-month period;

• Have a disability for the purposes of the Equality Act 2010; or

• Require care for a reason connected with their old age.

Notably, there is no minimum tenure requirement to take carer’s leave, making it a "day one" entitlement for employees. 

Practicalities around taking carer’s leave

The Carer’s Leave Regulations have provided further details around the practicalities and procedural requirements for taking carer’s leave. Notably:

• Employees do not need to provide evidence to their employer to take carer’s leave. This means that employers cannot require their employees to provide evidence before granting the leave being requested.

• Carer’s leave can be taken in individual days or half-days, however there is a minimum requirement to take at least half a working day at a time. A ‘working day’ means the days which the employee is normally expected to work.

• There is no requirement to take carer’s leave on consecutive days, meaning that carer’s leave can be taken on separate days during the 12-month rolling period.

• While employees are required to provide notice to their employer, it does not need to be provided in writing. Employees are required to provide notice which is either twice as many days of the period of carer’s leave being requested or three days (whichever is longer). Additionally, where an employee has failed to provide the required amount of notice, their employer can choose to waive this notice requirement.

• Employers are unable to outrightly reject a leave request but can defer it where the employer reasonably considers that allowing the employee to take leave during the requested period would unduly disrupt business operations. In the event of a postponement, the employer must permit the employee to take an equivalent period of carer’s leave within a month of the dates initially requested. Additionally, the employer must provide written notice to the employee within seven days of the employee’s initial request, explaining the reason for the postponement and setting out the revised leave dates.

• If an employee has a contractual entitlement to carer’s leave, then the employee cannot take advantage of both the contractual entitlement to carer’s leave and statutory carer’s leave on separate occasions. Rather, the employee can only take advantage of the carer’s leave entitlement that is more favourable.

Other key points that employers should be mindful of

There are also a number of additional key points that employer’s need to take into account where an employee is either taking or has requested to take a period of carer’s leave.

Similar to other statutory leave rights, employers are prohibited from penalising and subjecting an employee to detriment because the employee has taken, has requested to take, is planning to take or is likely to take carer’s leave, and any dismissal on these grounds will be considered automatically unfair.

If an employee believes their leave has been unreasonably postponed or obstructed (i.e., because their employer has either prevented or tried to prevent them from taking carer’s leave), then they may bring a claim in the employment tribunal. If the claim is successful, the tribunal can make declarations and award compensation in an amount that the tribunal deems to be "just and equitable."

For completeness, the Carer’s Leave Regulations also specify that where an employer needs to calculate a ‘week’s pay’ under Part 14, Chapter II of the Employment Rights Act 1996 (for example, to calculate a statutory redundancy payment or holiday pay), then a period of carer’s leave taken by an employee may need to be disregarded in certain circumstances.

Practical tips for employers

Given that the commencement date for this entitlement is soon approaching, employers should consider taking steps to ensure that they have mechanisms in place to deal with this new entitlement, which can include:

• Revising or developing new policies aimed at clearly communicating the entitlement to carer's leave and the associated procedures to request and take carer’s leave.

• Establishing a system of record-keeping to monitor the number of days employees take for carer's leave. This data can also be instrumental in assessing and determining whether additional support could be offered to employees. Ensuring that managers are well-informed about the entitlement to carer’s leave and are trained to respond to carer’s leave requests. Additionally, training should be provided to inform managers about the legal risks of subjecting employees to detriment or dismissal for a reason connected to taking carer’s leave and it may also be beneficial for HR and managers to receive training about the broader potential sensitivities that may arise when dealing with a request for carer’s leave.

• Considering whether a period of carer’s leave needs to be disregarded when calculating a ‘week’s pay’ for the purposes of statutory redundancy pay or holiday pay and seeking legal advice if they are unsure.

* Kate Davies is a paralegal at GQ|Littler.