Employees who are carers have an entitlement to request unpaid carer’s leave if they need it, but what do employers need to be aware of when they get such a request? Let’s start by looking at who the law defines as a carer.
A carer is someone who provides care or arranges care for a dependant. That’s defined as anyone who:
- has a physical or mental illness or injury which means they need care for more than three months
- is considered disabled under the Equality Act 2010
- needs care because of old age
A dependant could be:
- a husband, wife, civil partner, or partner
- a child
- a parent
- a person who lives with the employee but is not a tenant, lodger, or employee
- a person who reasonably relies on them for care such as a friend or elderly neighbour
It’s not necessary for the dependant to have the same address as their carer. As we mentioned, a dependant could be a neighbour or friend, living close by.
Who’s entitled?
Only those who are legally classed as an employee are eligible for Carer’s Leave. This means that workers or the self-employed will not get it. Carer’s leave is a Day One entitlement, which means no waiting period before an employee can request it.
During carer’s leave, an employee’s employment rights (including holidays and their ability to return to their job after their carer’s leave) are protected.
How much leave can be requested?
The law says that a carer can take up to a week of unpaid leave every 12 months.
The definition of ‘a week’ will depend on how much time the employee works during a week. So, if they only work for two days a week, they will be entitled to take two days of carer’s leave per year.
This can either be taken on consecutive days, or as individual or half days spaced out, provided that the total isn’t more than their legal entitlement.
Employees with irregular working patterns
Some employees work different hours each week, depending on their job. In this case, the employer should use the following formula to determine the number of days to which they would be entitled.
- Total up the number of hours worked in the previous 12 months
- Divide that number by 52.
- If they haven’t worked a full year, use the number of weeks they have worked in their current post.
New employees
Caring duties may arise at any time and an employee may need to take carer’s leave during their first week of employment. If this happens, the employer should
use the number of days they are expected work that week as the amount of leave they can take.
For example, if they will be working three days that week, they will be entitled to three days of carer’s leave they can use.
No matter how many dependants they care for, the employee is only entitled to one week of unpaid carer’s leave.
Applying for carer’s leave
It goes without saying that an employee who wants to take carer’s leave must give their employer notice.
If the amount of leave they want to take is either a day or half a day, then the amount of notice they must give is at least three days.
If the amount of leave is more than a day, then the notice period must be at least twice the period of leave requested. So, if they wanted to take three days’ leave, then they would have to give six days’ notice.
Even if the employee only needs a half day of leave, the notice given must be a full day at the very least.
They don’t need to make that request in writing but it’s a good idea for them to do so as this means everyone has evidence of exactly what was asked for.
Refusing a request
After receiving a request for carer’s leave, an employer can only refuse it if it can be shown that serious disruption would be caused to the business as a result. If there is no problem with the employee taking that leave, then it should be granted.
If the employer refuses a request, then within a month, they must agree an alternative date for the leave to be taken. They must also confirm to the employee why the leave request has been delayed and the new date, and this must be done in writing within seven days of the request being made. It must also be prior to the requested start of the leave.
Employment tribunal claims relating to carer’s leave
If the employer postpones a period of carer’s leave without reasonable cause, or if they prevent (or attempt to prevent) the employee from taking carer’s leave, then that employee could take the employer to an employment tribunal.
If the result of the tribunal is that the employer did what they were alleged to have done, the tribunal will have to make a declaration confirming what the employer did, and compensation may be awarded to the employee by the tribunal. The employer will have to pay this.
The amount of compensation will relate to how much the employee lost through not being able to take the carer’s leave. This could include the costs of sourcing third party care to cover.
Protection from detriment and dismissal
An employee can’t be disadvantaged or dismissed (called in legal terms “suffering a detriment”) because of their right to take carer’s leave.
Other unpaid time off
It should be noted that carer’s leave is different from unpaid parental leave and time off for dependants.
How can we help?
If you’re an employer who’s received a request for carer’s leave, why not contact our team of legal experts and advisers to find out how to handle it.
If your staff handbook or policies are in need of updating to take into account carer’s leave, or any other type of leave related to dependants, we can help you with that. We often work with clients to redraft their policies and procedures to make sure they’re up to date and compliant with the law. Let us know how we can help you.