Carer's Leave Regulations | Coles Miller Employment Law

New Rights For Employees Who Are Also Carers 

New regulations will give greater rights to employees who have a dependent with long-term care needs.
The employees will be able to apply for one week of unpaid carer’s leave in any 12-month period.

Significantly, the new changes will be a ‘Day One’ employment right.

What Will The New Carer’s Leave Regulations Mean?

These latest legal changes have inserted new sections into the Employment Rights Act 1996. They will come into force on 6 April 2024.

The new regulations are the result of the Carer’s Leave Act 2023, which gained the Royal Assent on 24 May 2023. The Bill had been brought forward North East Fife MP Wendy Chamberlain.

At headline level, these are the main points:

• The right applies to employees who have a dependant with a long-term care need (those who want to be absent from work to arrange/provide care for that dependant).
• Employees must give written notice of their intention to take carer’s leave – confirming their entitlement to take it.
• Requests can be for consecutive or non-consecutive half-days or full days. The minimum leave that can be taken is half a working day. The maximum period is a week.
• Employees must give at least twice the amount of notice of the period of leave requested. Or – if longer – three days’ notice.
• As stated, this is a Day One employment right that will come into force on 6 April 2024.

Who Qualifies As A Dependent Needing Long-Term Care?

For the purposes of the regulations, a dependent can be a spouse, civil partner, child, parent or someone who lives in the same household that is not a lodger, boarder, tenant or employee. 

Long-term care is defined as a physical or mental illness or injury that needs – or is likely to need – care for more than three months. It could be a disability as outlined in the Equality Act 2010. Or it could simply be care that is required as a result of the dependent’s old age.

Can Employers Push Back?

Yes, but only up to a point. Employers can’t deny a request indefinitely – but they can postpone a request if it is likely to cause undue disruption to the running of the business.

Employers seeking to postpone a request must give notice before the leave was due to begin. They must explain why postponement is necessary. And they can’t simply keep repeatedly postponing the leave.

The written notice of the postponement must:

• state the reason for not allowing it on the chosen date(s)
• set out agreed dates on which the employee can take carer’s leave
• be given to the employee “as soon as reasonably practicable” but not later than whichever of these comes first:
  - seven days after the employee gave notice
  - before the earliest day/part-day requested in the employee’s notice.

The employer must allow the leave to be taken within one month of the start-date of the leave originally requested. They should reschedule the leave in consultation with the employee.

Employers cannot require an employee to provide evidence of the need to take leave before granting the request.

Employees are protected from detriment and dismissal for taking or seeking to take carer’s leave – or if the employer believes they are likely to do so.

If an employee fails to give the correct notice – and the employer waives the requirement – then the employee will be treated as if they had given notice correctly. 

Potential Pitfalls Of The New Regulations

For employers, the administrative hurdles of this carer-centric legislation are quite obvious. It may not be the most onerous set of regulations that employers will ever face, but it is yet another straw on the camel’s back.

Yet again, employers will have to take time away from the running of their business – in lacklustre economic conditions – to deal with yet more well-intentioned government red tape. They’ll have to adopt a de facto welfare role to support employees who are struggling because the healthcare and social care systems are creaking under the weight of increasing demand.

Most employers are decent enough to give employees some leeway for the odd isolated care incident. But what if the incidents become more prevalent? It’s not ideal.

And it’s hardly a panacea for the employees/carers either. Life is no respecter of well-laid plans or the timescale provisions of legal regulations. The reality is that dependents’ care requirements may come repeatedly and with little warning.

So if an employee takes carer’s leave to deal with a sudden and unexpected situation, then – under the terms of the new regulations – that prevents them for applying for leave for the next 12 months.

But what happens if another similar care emergency occurs during those 12 months? If the employee has used up their one opportunity for carer’s leave then they face the prospect of either:

• appealing to the employer’s goodwill – which may wane over time
• getting help from the overburdened state
• funding private care themselves – not always possible in the current cost of living crisis.

So it will be interesting to see how the new regulations pan out in the real world.

Get Expert Legal Advice On Carer’s Leave

The new Carer’s Leave Regulations raise serious legal questions for employers, employee/carers and their dependents. For expert legal advice, contact Coles Miller Employment Law Solicitor Hugh Reid.

Hugh is an experienced solicitor and a member of the Employment Lawyers Association (ELA), the voice of authority in this complex and specialised area of the law. Hugh qualified as a solicitor in April 2006, and has been specialising in employment law since September 2008.

Before qualifying as a solicitor, Hugh worked in the legal department at Surrey Police HQ, where he dealt exclusively with employment law matters.

Hugh’s areas of expertise include employment contracts, redundancy, TUPE, wrongful dismissal, settlement agreements, discrimination claims, ill-health absences and dismissals, restrictive covenants, equal pay claims, disciplinary and grievance procedures, health and safety, data protection issues, maternity/paternity rights and holiday entitlement.

He is based at Coles Miller’s Poole office. 

* This document is not intended to constitute and should not be used as a substitute for legal advice on any specific matter. No liability for the accuracy of the content of this document, or the consequences of relying on it, is assumed by the author. If you seek further information, please contact Hugh Reid at Coles Miller Solicitors LLP.