What rights do carers have in the workplace?

With Carers Rights Day 2021 approaching, Verity Buckingham examines the current protections carers have as well as new proposals put forward by government

What is Carers Rights Day?

This year’s Carers Rights Day on 25 November will focus on the rights of unpaid carers. This is particularly relevant now because of the huge impact the Covid-19 pandemic has had on carers, many of whom have struggled to juggle work and caring responsibilities.

Current rights and protections

Currently in the UK, there are several statutory rights exercisable by carers, which are:

  • Time off for emergencies: all employees have a legal right to take reasonable time off to deal with emergencies involving a dependant. This can include, for example, a dependent falling ill, being injured, giving birth or dying, or the unexpected closure of a school or childcare facility.

  • Request flexible working: after 26 weeks of employment, employees can make a request for flexible working. This could involve a change to their working pattern or hours to incorporate home working, part-time working, compressed hours or job sharing for example.

  • Parental leave: employees with at least one year's continuous service can take up to 18 weeks' unpaid parental leave per child before the child's eighteenth birthday, for the purpose of caring for the child.

Where an employee feels they have been treated unfairly by their employer's reaction to their caring duties, they may be able to rely on the Equality Act 2010 for protection. The act provides that discrimination by association occurs when a person is treated less favourably because they are linked or associated with a protected characteristic. 

An example would be an employee who is required to take time off work to look after a disabled child. If the employer gets fed up with the amount of time off taken and dismisses the employee, the dismissal may amount to direct disability discrimination against the employee by association with the disabled child.

Currently, the duty to make reasonable adjustments for a disabled employee does not extend to employees associated with a disabled person. Despite this, an employer may still wish to consider making adjustments for employees with disabled relatives to maintain positive employee relations.

Government proposals

The government recognised the importance of unpaid carers in its March 2020 consultation on carers' leave. There was strong support from a variety of respondents, recognising the benefits to carers and employers to be gained from a more supported workforce. The government has now confirmed its intention to introduce an entitlement for unpaid carers to take up to one week of unpaid leave per year. The new right will be introduced through legislation when parliamentary time allows.

For the purposes of the proposed right, a carer is anyone who assists a family member, partner or friend who needs help because of a disability, illness, mental health problem or addiction and cannot cope without support. The new right will apply to all unpaid carers in employment, subject to meeting two criteria:

  1. The person being cared for needs to be closely associated with the carer, such as a family member, a member of the same household, or someone who reasonably relies on the carer for care; and
  2. The person receiving the care must have a long-term care need or fall within a specified exception, such as a person with a terminal illness.

Carers will be entitled to five working days of unpaid leave per year. The right will apply from day one of their employment. The unpaid leave can be used for providing care or making arrangements for the provision of care. Eligible employees will be able to take the leave flexibly, from single days or even half-days up to the full five days in one go.

Implications for employers

  • Employers should treat carers' leave in a similar way to annual leave, with the same notice requirements applying when the leave is to be taken. An employer would be able to postpone, but not deny, the request for carers' leave.

  • Eligible employees can self-certify their right to the leave, so it will be important not to request sensitive medical documents concerning the person being cared for. A false application would be dealt with in the same way as any other disciplinary matter. 

  • Carers' rights will be protected by law. The government is proposing a new ground of automatically unfair dismissal for any dismissals for reasons connected to the exercise of the right to carers' leave.

  • It is advisable for employers to build flexible working options into company policies as standard, or hold awareness sessions at their workplaces, so carers are aware of their entitlements and support offered by employers.

  • There is currently no day one right to request flexible working, but this is on the government's agenda. A separate consultation about this proposal was launched on 23 September 2021.

Next steps

It is now a wait and see game as to when the new right to unpaid leave will be introduced. The government has a packed agenda and has indicated that the right would be introduced at the same time as the day one right to request flexible working. As that consultation closes on 1 December 2021, legislative change in this area seems a long way off. 

However, employers have been given plenty of notification that these changes will be made, and proactive employers may start to introduce some policy changes which are more inclusive and supportive of the carers in its workforce. Such an approach is likely to assist with retention and attrition issues in these challenging times as employees continue to juggle work and home commitments post-pandemic. 

Verity Buckingham is counsel at Dentons