UK: Caregivers Will Be Entitled to One Week of Unpaid Leave

​The U.K. government has confirmed that caregivers or "carers" will have a new right to one week of unpaid leave each year to fulfill caregiving responsibilities. Any employees hoping to exercise the right soon will, however, be disappointed that legislation will only be introduced when "parliamentary time allows."

After a year in which unpaid caregiving responsibilities have never been quite so visible, the government has confirmed that caregivers will be entitled to one week of unpaid leave per year. Following a consultation last year, the government's response now provides some detail on how employers can expect this new right to operate.

What Can an Employee Take Caregiver's Leave For?

Employees will be able to take advantage of the caregiver's leave entitlement to "provide care or make arrangements for the provision of care for a dependent who requires long-term care." The government has ensured there is a broad definition of what the leave might be used for. The consultation flagged that the new right would be useful for caregivers to provide a person with personal and physical support, assist with official or financial matters and accompany them to medical and other appointments.

The government has, nonetheless, also made clear that the objective of caregiver's leave is primarily to support those providing care for someone with a "long-term care need"—a focus that is central to the introduction of the entitlement. This is because it is usually the impact of prolonged and ongoing care needs that makes it difficult for caregivers to balance their work with their caregiving responsibilities.

"Long-term care need" is defined as a long-term illness or injury (either physical or mental), a disability under the Equality Act 2010, or issues related to old age. There will be limited exemptions from this requirement for long-term care—for example, in the case of terminal illness.

This government's approach clearly stems from its belief, illustrated during the consultation, that other existing types of leave are more appropriate for employees to take when dealing with "short-term care needs." For example, in emergency situations, the right to time off for dependents provides employees with an entitlement to take time off work without notice. Further, where a short-term care need is foreseeable, annual leave can be taken—such as to support someone who does not usually require care as they recover from a broken arm or minor operation.

Importantly, there is no evidence or certification requirement to support a request for caregiver's leave. The government says that if an employee makes a false application to use the leave, this should be dealt with in the same way as any other disciplinary matter. Both employers and employees may be relieved by this, given the challenges of managing sensitive personal and medical information relating to a third party.

It is also clear that the government does not envisage that caregiver's leave will add to or amend any leave entitlements (e.g., parental leave) currently in place for parents. The government says that changes to those leave entitlements will be considered separately in the future.

Who Can Take Caregiver's Leave?

Caregiver's leave will apply to employees only, with eligibility depending on the employee's relationship with the person for whom they provide care. Broadly, the relationship should follow the definition of "dependent" that is used for the right to time off for dependents. This includes a spouse, civil partner, child, parent, a person who lives in the same household as the employee (other than by reason of them being their employee, tenant, lodger or boarder), or a person who reasonably relies on the employee for care.

This last relationship mentioned is critical for employees as a catch-all provision. The consultation highlighted that the leave should be available to those caregivng for girlfriends, boyfriends, siblings, grandparents, and so on. The inclusion of "a person who reasonably relies on the employee for care" is sufficiently broad to include such relationships.

The leave will be a "day one" right, meaning there is no minimum service requirement to take advantage of it. As with other statutory leave entitlements, employers cannot penalize any employee choosing to take advantage of caregiver's leave once it is brought into force. Dismissal of an employee for a reason connected with their taking caregiver's leave will be automatically unfair.

How Can Caregiver's Leave Be Taken?

Caregiver's leave can be taken flexibly either as full days or half days, up to a block of one week per year. It was clear from the consultation that this approach was regarded as the most advantageous for caregivers.

Notice requirements will apply, in line with the purpose of the leave being to assist those with planned-for caregiving responsibilities. These will mirror the requirements for annual leave—the employee must give notice that is twice the length of the time being requested as leave, plus one day. Employers will not be able to deny employees' requests for caregiver's leave but can postpone the leave if the business would be unduly disrupted. In that case, the employer would need to give a counter-notice.

Considerations for Employers

As with any new workplace right, employers will need to carefully assess the implications for their workforce and plan for how the right should be publicized and incorporated into HR systems. They should, for example, consider the following:

• Updating or creating policies to inform employees of the new right and the logistics of requesting and taking it.
• Creating a self-certification form for employees to complete, declaring that they meet the legal definition of a caregiver and will be using the leave in that capacity.
• Introducing a system of record-keeping to track the number of days taken. Employers may wish to consider what further support they can provide for employees.
• Informing people managers of the new right, the fact that any dismissal connected to using the leave will be automatically unfair, and the potential sensitivities around this topic. Some employees may not wish their colleagues to be aware they are taking time off for caregiving responsibilities, if they have not previously discussed this at work, or may not want to inform their manager of their need to take caregiver's leave.
• Being mindful that employees may or may not wish to use this leave, particularly as it is unpaid. At the same time, the new right may encourage employees to talk to their employer about any caregiving responsibilities they have and how they can manage them.

Some have questioned whether the administrative burden for employers associated with the new right outweighs the arguably minimal benefit of an additional one week's unpaid leave for those with long-term caregiving responsibilities. Ultimately it appears the government decided an additional week was better than nothing, providing a tool to assist such employees with balancing their responsibilities against their working commitments.

Ciara Muldowney is an attorney with Lewis Silkin in London. © 2021 Lewis Silkin. All rights reserved. Reposted with permission of Lexology.