Being a carer is hard for lots of reasons and the need to juggle caring responsibilities and work is only one of them. You don’t need a lawyer to tell you that the impact of those responsibilities on the carer’s own daily life, not to mention their physical and mental health, could easily manifest in the workplace with issues around attendance, unexpected absence and more frequent requests for leave.

Employers need to be alive to the issues around, and impact of, providing unpaid care. Not only is there a commercial incentive to do so, given the likely number of affected employees in the workforce, but there will likely soon be greater legislative obligations and protections in this area too.

The Carer’s Leave Bill is currently making its way through the UK Parliament and if it passes the remaining stages, which seems likely, it could become law later this year or early 2024.

Blair Duncan is a Solicitor at Blackadders.

Broadly speaking, the Bill provides for carers to have a period of at least one week of unpaid leave to provide or arrange care for a dependant with a long-term care need. The dependant (a spouse, civil partner, child or parent, who live in the same household as the carer) must reasonably rely (not defined) on the carer.

The ability to use Carer’s Leave is limited to help those who have: (i) an illness or injury requiring care for more than three months; (ii) a disability for the purposes of the Equality Act 2010; or (iii) the requirement for care for a reason in connection with old age.

Despite the definitions, it is not expected that the carer will be required to provide evidence of their request for any leave and so they should not have to evidence to what extent their relative relies on them or provide evidence of appointments, for example.

There will be no minimum service requirement either, meaning Carer’s Leave will become a day one right. The carer will be able to take leave in half or full-day periods. It is not yet clear but there is likely to be the requirement to give notice, similar in length to that required when requesting holidays, to the employer to utilise Carer’s Leave. That requirement for notice makes it clear that this is not intended to be emergency leave but rather for planned appointments or commitments.

Currently, more general statutory protections, which can also be utilised by carers, do exist but are limited. They include Dependant’s Leave (unpaid emergency leave) and unpaid Parental Leave (that obviously excludes carers not providing care to children).

Holidays are also frequently used by carers to help them with their responsibilities, which arguably goes against the purpose of holidays (rest) in the relevant legislation.

Frequently carers make flexible working requests either under the statutory procedure, which may itself soon become a day one right, or under their employer’s policy. However, the employer always has the option to refuse any request. I would however always caution employers to carefully consider a request before refusing to try as much as possible to minimise a discrimination claim where a protected characteristic may underpin the request. In other words, look at why the employee is making the request not just whether it can work on paper. Ignoring discrimination can be costly.

Some will argue that the law should go further. For example, the Bill does not arguably address the unpredictability of caring, where appointments or issues often come up at the last minute. How can a carer give notice in those circumstances? The Bill also provides for unpaid leave whereas many have called for it to be paid given that, for many, their caring role is also likely to be unpaid.

The adopted position appears to be that the legislation is a sort of half-way house to give statutory protection to carers but without imposing too much of a burden on the employer. In other words, it is a start. But is it enough? Time will tell.

Blair Duncan is a Solicitor at Blackadders.

Employers need to be alive to the pressures faced by unpaid carers - Blair Duncan