UK: draft regulations provide detail of new right to carer's leave planned for 6 April 2024

Draft regulations have now been published setting out the detail of the proposed new 'day one' right for (unpaid) carer's leave, due to come into force on 6 April 2024. In preparation employers may wish to start drafting a stand-alone policy or consider adding the new right to any existing policy covering time off for dependants.

Employees will be entitled to one week's unpaid leave per rolling 12 months to provide or arrange care for a dependant with a long-term care need (note the entitlement is one week per year, regardless of the number of dependants an employee has).  The definition of dependant follows the definition in the existing right to time off for dependants, and includes spouse, civil partner, child, parent, household member (excluding boarders, employees, lodgers, tenants), and any “person who reasonably relies on the employee for care”.  A long-term care need is a long-term illness or injury likely to require care for more than 3 months, disability as defined by the Equality Act, or issues related to old age. Note that the final legislation does not expressly cover situations such as terminal illness likely to require care for less than 3 months, as originally proposed in the Government’s 2021 consultation response, but employers could choose to extend the right to this situation.

The leave will be available for providing care or making arrangement for the provision of care.  The 2021 consultation response suggested that permitted activities could include providing personal support, helping with official or financial matters, accompanying someone to medical and other appointments, or providing care for someone who reasonably depends on the employee for care while their primary unpaid carer is taking respite.

The leave may be taken in either individual days or half days, up to a block of one week. The employee must give notice specifying that they are entitled to carer's leave (ie, they have a dependant with a long-term care need, are requesting time off to provide or arrange care for that dependant, and have unused entitlement) and the days or part-days requested.  The notice need not be in writing but must be given the greater of twice as many days as the period of leave requested and 3 days in advance, although the employer can choose to accept late notice.  The employee is not required to provide evidence of entitlement.

An employer cannot decline a request but may postpone the leave if:

• it reasonably considers that the operation of the business would be unduly disrupted by allowing the request;
• it allows the employee to take the same length of leave starting on a date determined by the employer after consulting with the employee, which must be within a month of the first day initially requested; and
• it gives the employee a written notice within seven days of the initial request, setting out the reason for the postponement and the agreed dates on which the leave can be taken.

An employee can bring an employment tribunal claim for a declaration and just and equitable compensation if the employer unreasonably postpones or prevents or attempts to prevent the employee taking leave.

Protection during leave is similar to other family-related leave: the employee is entitled to the benefit of all their terms and conditions (apart from the right to remuneration), the right to return to the original job, and protection from detriment and dismissal due to taking or seeking to take carer's leave.

Where weekly hours vary, a week's leave is calculated by averaging over the previous year.

Government guidance will be published prior to 6 April 2024.  Update March 2024: brief guidance has been published here.

Employers may wish to consider enhancing the right contractually, for example by continuing pay or increasing the amount of leave permitted.  Those with contractual policies already in place should check whether they need updating to ensure the minimum statutory entitlement is included.