Slotting carer’s leave into the statutory leave jigsaw

As the types of statutory leave continue to grow, understanding the relationship between them grows ever more complicated. That is particularly pertinent in the case of carer’s leave, which all employees will have access to from 6 April.

The basic scheme of carer’s leave is easily stated: an annual entitlement for all employees of up to a week’s unpaid leave to care for dependants with a long-term care need. But as ever, it gets more complicated when drilling down to the detail.

Points of contrast

One approach to understanding how carer’s leave works is to contrast it with the two other types of unpaid statutory leave with which it overlaps: parental leave and time off for dependants.

  • Qualifying period: There is no qualifying period for carer’s leave, like time off for dependants but unlike parental leave, where employees need at least one year’s continuous service to benefit.
  • Eligibility conditions: Entitlement to carer’s leave is confined to caring for a dependant with a long-term care need. So there is a degree overlap with parental leave (which has some features which are tailored to disabled children). There is also some overlap with dependant’s leave, though in that case the dependant doesn’t necessarily have to have a long-term care need, although the need does have to be unexpected.
  • Taking leave: up to a week of carer’s leave can be taken in any rolling 12 month period, in minimum units of half a day. It is therefore more flexible than parental leave, which normally must be taken in minimum blocks of at least a week, though of course the annual entitlement is much more limited. It contrasts with dependant’s leave because the amount of time that can be taken each year is defined in advance, rather than being defined by on what is reasonable to deal with each individual emergency.
  • Notice requirements: the employee needs to give a minimum of three days' notice (or, if greater, twice the number of days’ notice as the length of the leave requested). The employer cannot require evidence of entitlement before granting leave. With parental leave the minimum notice period is normally 21 days, and evidence of entitlement can be required. In both cases employers have the right to postpone the timing of the leave, though the precise details differ.

Enforcement of rights

An employee has the right to bring proceedings in the employment tribunal if their employer has unreasonably postponed a period of carer’s leave, or has prevented or attempted to prevent the employee from taking carer’s leave. If the case is proved, the employment must make a declaration to that effect and may award compensation.

In addition, like the beneficiaries of all other family-related rights to time off or statutory leave, employees taking or proposing to take carer’s leave are protected from being victimised by their employer because they have taken or are planning to take this leave. Any dismissal for this reason is automatically unfair, and they are also protected against being subjected to any other detriment for this reason.

What to watch out from 6 April

The introduction of carer’s leave has considerably expanded the range of circumstances in which employees asking for unpaid time off for family-related reasons will in effect be asking for a period of statutory leave. It is therefore important to ensure that managers are aware of the key features of this new entitlement so that they can respond appropriately to requests for time off.

As with parental leave and dependant’s leave, the employee’s notice doesn’t have to be in writing to benefit from statutory protection against victimisation. Indeed, a recent case involving parental leave has confirmed that expressing an intention to take the leave is sufficient to bring the employee within the scope of this protection.

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Every piece of content we create is correct on the date it’s published but please don’t rely on it as legal advice. If you’d like to speak to us about your own legal requirements, please contact one of our expert lawyers.

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