Carer’s Leave Takes Another Step

The statutory right to take time off is contained in either the Employment Rights Act 1996 (in Great Britain) or the Employment Rights (Northern Ireland) Order 1996.? Neither contain a statutory right to leave if an employee has caring responsibilities.? The 2019 Conservative Parry Manifesto committed to introduce this saying :?

‘We will extend the entitlement to leave for unpaid carers, the majority of whom are women, to a week’.?

This was reference to the fact that there are different statutory leave entitlements such as maternity, paternity, dependency leave etc and a new one would be created for unpaid carers.

It is necessary to point out there is one United Kingdom with two employment law jurisdictions:

No single piece of employment law legislation can apply UK-wide, as this is totally devolved to Northern Ireland.? Often, employment law is mirrored between the two employment law jurisdictions but there is nothing to say that they must be or that they have to say the same thing.?

So, when we talk about legislation that originates in Westminster, we are talking about employment law that applies in Great Britain or, at least, where the employment contract is written under the Great British Employment Rights Act.

An Employment Bill proposed in the December 2019 Queen’s Speech would have provided a legislative opportunity.? However, years came and went without the appearance of an Employment Bill.

In 2020, the UK Government consulted on ‘proposals to give employees a week of unpaid leave each year to provide care’.? A 2021 responses document showed that there was support and concluded ‘Legislation to introduce carer’s leave as a day 1 statutory employment right will be brought forward when parliamentary time allows’.?

The phrase ‘when parliamentary time allows’ always means it is not a priority!

In 2021 Conservative MP Jack Brereton introduced a Private Member’s Bill entitled the Employment (Caring Leave) Bill 2021/22 .? This would have been legislation that gave ’employees who are unpaid carers the right to one week’s unpaid leave for caring purposes’.?

However, Mr Brereton’s name was not in the 2021 ‘Top 20 ’ and his Bill did not receive a second reading.? Even if in the top 20, with Private Members’ Bills it is only the top 7 that are guaranteed a full day’s debate anyway.

On 15 June 2022, Liberal Democrat MP Wendy Chamberlain introduced her Carer’s Leave Bill .? Ms Chamberlain was in the 2022 top 20 at number 10? so, whilst not guaranteed a full day’s debate, she was high enough in the charts to have a reasonable chance of the Bill making it into final legislation.?

More importantly, on 21 October 2022, this Private Member’s Bill received UK Government support .? Fast forward to Royal Assent on 24 May 2023, the Carer’s Leave Act 2023 and a press release the following day (announcing the Royal Assent of two others as well).

This contains 3 sections:?

1. Section 1 – the creation of a statutory entitlement to carer’s leave (in the Employment Rights Act 1996)
2. Section 2 – the ‘power to make consequential provisions’.? This means, basically, that rather than having to go through the legislative process again via primary legislation (an Act), other legislation can be amended if the changes are consistent with the underlying concept of the original legislation, i.e. the provision of the statutory right to take leave
3. Section 3 – the ‘extent, commencement and short title’, i.e. where it applies, when it is effective and what the legislation is to be called

The 2023 Act also contains a ‘schedule’ which details what effects the legislation will have when it comes into force.

Section 3 ‘extent, commencement and short title’ came into force on the date of Royal Assent (24th May 2023).? The rest of the Act came into force on 04 December 2023 courtesy of the Carer's Leave Act 2023 (Commencement) Regulations 2023 .?

However, these Regulation only insert the statutory provision into employment law.? These must be commenced and the statutory right to take carer’s leave is expected to be in force from April 2024.

In this first instance, the statutory provision is only inserted into the Employment Rights Act.? So, it will only be a right to leave where the contract of employment is written under this legislation.?

Education is the most important thing, i.e. being aware of the changes from 2024.? This will affect policies and procedures, as eligible employees can take 1 week of unpaid leave per year.? This can be taken flexibly, i.e., in increments of half days or individual days, up to a block of 1 week.?

The key words here are:?

• What is an eligible employee?
• What is flexibility? And, of course
• How will employers administer this new statutory entitlement?

?When looking at policies and procedures, employers are advised to see the new statutory right information that is contained in the Schedule , which will be inserted into the Employment Rights Act 1996 from 04 December 2023.?

Also, the UK Government is aware of the possible ‘Financial Consequences’ of this unpaid statutory entitlement, as outlined in their notes to the Bill when it was introduced.? As a result:?

• It may mean employees become eligible for (paid) Carer’s Allowance which employees must claim.? In Scotland, there is the gradual roll-out of the Carer Support Payment
• It may mean an employee becomes entitled to Universal Credit (UC) for the first time (which they must claim).? Or, if they are already in receipt of Universal Credit, a period of no pay may increase their UC payment

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