New right to Carer’s Leave
Is your business ready?

From 6th April 2024, employees in England, Scotland and Wales will have a new statutory right to Carer’s Leave. The Carer’s Leave Regulations 2024 will enable employees to take up to one week of unpaid leave each year to provide, or arrange, care for a dependant with a long-term care need.

In this article, Arbor Law’s Fiona Morgan addresses some of the most commonly asked questions to help businesses prepare for this new law.

Who has the right to take Carer’s Leave?

The right only applies to employees. The right does not apply to workers, consultants or self-employed contractors.

Employees are entitled to take Carer’s Leave if they meet the following requirements:

  1. They have a dependant with a long-term care need.
  2. The purpose of the leave is to provide or arrange for care for that dependant.
  3. They have not already exceeded their annual entitlement to Carer’s Leave.
  4. They have submitted a written request that is compliant with the Carer’s Leave Regulations.

Carer’s Leave is a day 1 right, meaning that it can be requested from the first day of employment.

What is a “dependant”?

A dependant includes:

  • The employee’s spouse/civil partner, child or parent;
  • Any person who lives in the same household as the employee (other than as a tenant, lodger, boarder or employee); or
  • Any other person who reasonably relies on the employee to arrange or provide care.

Note that employees cannot take Carer’s Leave for general childcare purposes unless the child has a “long-term care need”.  Unpaid time off for general childcare purposes can, however, be requested under existing Parental Leave rights.

What is a “long-term care need”?

A dependant has a long-term care need if they:

  • Have an illness or injury (which can be physical or mental) which requires, or is likely to require, care for more than three months;
  • Have a disability as defined in the Equality Act 2010; and/or
  • Require care for a reason connected with their old age.
What does “provide or arrange care for” involve?

This is not defined in the legislation. Note that it is prohibited for managers to ask employees to justify why they need to take Carer’s Leave or what activities the leave will be used for.

Employees can therefore make their own assessment as to whether they are providing or arranging care for a dependant.

However, the purpose of the leave must be for providing or arranging care in some shape or form – and abuse of the right by using it for an unrelated purpose can legitimately lead to disciplinary action being taken (see below).

Can I ask an employee to provide evidence in support of their request?

No. This is explicitly prohibited under the Carer’s Leave Regulations 2024.

However, if you have reasonable grounds to suspect that an employee may be abusing their right to take Carer’s Leave (for example, a colleague draws your attention to videos on TikTok that show the employee on a stag weekend in Ibiza drinking tequila slammers at a bar during the same time period for which they were granted Carer’s Leave), you are entitled to investigate this as a potential disciplinary issue in the usual way.

How much leave can be taken?

Carers are entitled to 1 week’s unpaid leave, regardless of the number of dependants. The rolling 12-month period is calculated with reference to the 12 months ending on the last day of Carer’s Leave that the employee has requested.

The entitlement is pro-rated for part-time employees. If the employee works variable hours, an average of their working hours over the previous 52 weeks (or the number of weeks they have been employed, if less than a year) ending on the last day of Carer’s Leave requested, is used to calculate their entitlement.

How must the leave be taken?

The leave does not have to be taken all at once and can be taken over multiple days during the year, but the minimum period that must be taken is half a working day.

What notice must the employee give?

Employees must give at least twice as much notice as the length of leave they are requesting, subject to a minimum of three days. For example, if 4 days’ leave is requested, then at least 8 days’ notice must be given.

If the Employee does not give the required notice, the employer is entitled to refuse the request. However, the employer may also choose to waive the minimum notice requirement if they wish. Alternatively, if the leave requested at short notice is for an unexpected short-term emergency (such as a medical emergency), the employee may instead be entitled to the statutory right Time Off for Dependants.

Is verbal notice sufficient?

No. Employees making a verbal request should be instructed to put their request in writing. The written notice must state that they are entitled to take Carer’s Leave and specify the day(s) on which they wish to take it.

Can I refuse a request for Carer’s Leave?

No. It is unlawful to refuse a compliant request for Carer’s Leave.

However, requests can be postponed for up to one month, but only if you reasonably believe that your business would be unduly disrupted, for example, if it is impossible to find staff to cover their duties during a critically busy period.

If you wish to postpone Carer’s Leave:

  • You must notify the employee as soon as reasonably practicable and before the earlier of seven days after the employee’s notice was given, or the first day requested in the employee’s notice.
  • You must consult with the employee about the need to postpone it.
  • The postponed leave must start no more than a month after first day of their original request.

You must also confirm the postponement in writing, setting out the reason for the postponement and the agreed dates on which they can take Carer’s Leave instead.

What if I breach the Carer’s Leave Regulations?

If you unreasonably postpone, prevent or attempt to prevent an employee from taking carer’s leave, the employee is entitled to bring a claim before the employment tribunal. A tribunal can make a declaration and award compensation on a “just and equitable” basis, taking into account the employer’s behaviour and any consequential loss sustained by the employee.

Employees are protected from being subjected to detriment or dismissal on the grounds of taking or seeking to take carer’s leave, or because the employer believed that the employee was likely to take, Carer’s Leave.

What should I do to prepare?
  • Ensure that you are familiar with your rights and obligations under the Carer’s Leave Regulations 2024.
  • Introduce a suitable Carer’s Leave Policy, including appropriate notification templates for employees and managers to complete.
  • Introduce a “self-certification” form for employees to declare that they meet the legal definition of carer and will be using Carer’s Leave in that capacity.
  • Ensure that managers are suitably trained on handling requests for Carer’s Leave.
  • Update your HR record-keeping systems so that you can log and monitor the number of days’ Carer’s Leave taken by each employee.
  • Identify carers within your organisation and ensure that their support needs are assessed, including considering permanent flexible working arrangements where appropriate.
  • Consider whether you wish to enhance caring rights, for example, by offering paid leave or longer periods of paid/unpaid leave.

Further help

This article provides guidance on the incoming Carer’s Leave Regulations 2024. For advice and support on this or any other aspects of employment law, you can contact me to discuss how we can assist further.

About Fiona Morgan

Fiona is a senior employment lawyer with more than 18 years’ experience in advising a diverse range of corporate clients on employment law issues. Before joining Arbor Law, she was a partner and co-head of the Employment law department at Kennedys, working with a wide range of clients from multinational insurers and transport businesses to SMEs and start- ups. She advises clients on an array of employment matters, from day-to-day employment law queries to strategic guidance on long-term projects and corporate transactions.