Unpaid carer's rights in the workplace set to improve

With Carer's Rights Day just around the corner, in this article, I'll explain the new proposed right to?carer's leave and what this means for both employers and employees.

Since the COVID-19 pandemic, an estimated?13.6 million people?in the UK now take on caring responsibilities for their relatives and friends who are disabled, ill or older and who need support. But do they know their rights in the workplace?

As it stands, employees are generally allowed unpaid time off to deal with an emergency involving a dependent, under the ‘time off for dependants' guidelines. This could be a spouse, partner, child, grandchild, parent, or someone who depends on the employee for care.

There's a question mark though around just how much time is allowed.

Well, there's no set amount of time as it depends on the situation. The situation would have to constitute an emergency too - so pre-booked appointments wouldn't be considered.

This can inevitably cause confusion for employers and their employees.

However, one thing that may clear up employees' rights when it comes to taking on unpaid care roles outside of work, is that the Government has confirmed its intention to introduce carer's leave as a new statutory employment right.

So, what will this entail?

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 just as important as all other time off employees currently get, like 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 needed before staff can request it. Eligible employees will be able to take up to one week (5 working days) of leave per year. The leave can be taken flexibly, either in individual days or half-days, up to a block of one week.

Can employees expect to be paid when using carer's leave?

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 can choose to offer contractual pay if they want to. Details of this should be outlined in the handbook and communicated with the workforce. It's important that any enhanced payments are offered consistently, to ensure all staff are treated fairly and equally. Doing so minimises any potential risks of constructive dismissal or discrimination claims.

Who can benefit from carer's leave?

At the moment, only people with employee status can utilise carer's leave, and they must be

unpaid carers. The person they provide care to must be someone with a long-term care need. 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).

Though there's no set date for when this will come into effect, 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.?

So, what does this mean for organisations?

Whilst this new legislation is very similar to what is already in place for time off for dependants, care'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. Additional training for managers and HR teams would be beneficial; policies and procedures will need to be updated and communicated; processes for submitting and approving requests must be implemented; even staffing levels may need to be reviewed to ensure there's enough cover for those who make use of the leave.

A new Statutory Code of Practice will be released to give more detailed information on how carer's leave will be accepted and managed.

Managers who are already aware of any employees with caring responsibilities should keep in mind that they may request unpaid carer's leave, so be prepared to accommodate it. It's expected that employers will have limited scope for refusing requests and that any concerns over unreasonable requests should be objectively justified.?

Can organisations refuse carer's leave?

Refusing carer's leave or failing to comply with the new statutory entitlement could lead to timely and 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 unfavourable due to their relationship with someone who has a disability. There might also be an increased risk of constructive dismissal claims if the employee feels that they can't work there anymore due to their employer refusing the leave.?

Carer's leave shouldn't be included in absence triggers for disciplinary action. Doing so could further increase the risk of aforementioned 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 go above their entitlement of one week per year. Managers who have grounds to believe that their employee is unreasonably requesting or taking carer's leave can speak with them to explain their concerns. Following this initial investigation, they can then decide what action would be most appropriate. 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 it is clear that 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 their staff. Doing so helps reduce the risk of unplanned and long-term absences and contributes towards increased retention, motivation, and productivity.