Unpaid Carer’s Leave – new statutory rights

From April 2024, there will be a new statutory right for an employee to take unpaid leave in order to care for a dependant. Employers will not be able to decline the request, and can only postpone the request in very limited circumstances.

In May 2023, the Government passed the Career’s Leave Act 2023. Draft Regulations have now been put before parliament in order to bring the Act into force from 6 April 2024.

Once in force, employees who have a dependant with a long-term care need will have a statutory right to take one week’s unpaid leave in order to provide or arrange care. The right will be to take on week’s unpaid leave in each rolling 12 month period, and can be taken either as a block of one week, or as individual days or half-days.

In order to request leave, an employee will need to give notice to their employer. The period of notice required will be either twice as many days as the period of leave requested, or three days, whichever is greater. Therefore, if an employee wishes to take one day, they must give three days’ notice, or if they wish to take a full week, they must give ten days’ notice. The notice does not need to be in writing, and no evidence needs to be provided by the employee. An employer may also agree to waive the notice period required.

An employer will never be able to decline such a request. There are very limited circumstances where the leave may be postponed, but this will require all three of the following conditions to apply:

  1. The employer must reasonably consider that if the leave period was allowed when requested, the operation of the business would be unduly disrupted.
  2. The employer allows the employee to take the leave for the same duration that was requested, within one month of the date requested.
  3. The employer gives written notice within seven days of the request, setting out the reason for postponement and the agreed dates for leave to be taken instead

This has the potential to significantly impact an employer, as whilst the leave period is unpaid, all other terms and conditions of an employee’s contract and all other benefits will continue, and this could leave the employer needing to find cover at relatively short notice. However, employers should be very careful, as should they seek to postpone the request without evidence of undue disruption to the business and complying with the above steps, not only will the employer be in breach of the Regulations, but they could also face claims for associative disability discrimination.

Many employers already provide for contractual rights in relation to carer’s leave, and where they do the employee will only be able to take advantage of the entitlement that is more favourable, not both. It may therefore be worth employers considering ensuring that they have an appropriate policy in place, and if they have an employee who is known to have dependants with long-term care needs, ensuring that any required support is in place from an early stage.

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