Legal Update: The Carer’s Leave Act 2023
Augusta Itua
Tuesday, July 25, 2023
Augusta Itua, legal consultant at CoramBAAF, assesses the implications for carers of new legislation that gives employees the right to take leave in order to provide or arrange for long-term care needs.
The Carer’s Leave Act 2023 amends into the Employment Rights Act 1996. It introduces Carer’s Leave, including establishing a new entitlement for employees to take carer’s leave, for at least one week within any 12-month period, allowing them to provide or arrange care for a dependant with a long-term care need.
The act grants the power to create regulations that will implement this new entitlement to carer’s leave. These new regulations may set out modifications or exclusions to the entitlement to carer’s leave, or for different cases or circumstances. Regulations may also set out guidelines about how carer’s leave is to be taken, including that an employer cannot require an employee to supply evidence in relation to a request for carer’s leave, or specify which activities are to be treated as providing or arranging care.
Employees who take carer’s leave will have the same employment protections as those associated with other types of family-related leave, making sure their employment rights remain unaffected while they fulfil their caring responsibilities.
Dependent definition
The new sections elaborate on the definition of a “dependant” and include an employee’s child and individuals who reasonably rely on the employee to provide or arrange care, incorporating both adopted children and those children in kinship or foster care.
The new sections also define “long-term care need”. This term encompasses a dependent with an illness or injury — be it physical or mental — that either requires or is likely to require care for more than three months. A dependent who has a disability, as defined in the Equality Act 2010, is also included. The inclusion of a disability as defined by the Equality Act 2010 effectively broadens the new entitlements under the Carer’s Leave Act to cover a physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities.
While the Carer’s Leave Act 2023 endeavours to provide much needed support to help employees better balance their caring and work responsibilities, the regulations will need to address the disparities that currently exist between adopters, foster carers and kinship carers. These individuals may share similar caring responsibilities for children and young people with long-term care needs. These discrepancies highlight the need for more comprehensive laws that recognise and respond to the distinct needs of different types of carers.
Maternity, adoption, and other types of parental leave are linked to the birth or adoption of a child, or the acquisition of parental responsibility. These rights can only be claimed by those who hold parental responsibility for the child. This includes adopters, those fostering to adopt and kinship carers with parental responsibility for the child, who are legally classed as employees. However, foster carers, kinship foster carers, and private foster carers are not entitled to maternity and other types of parental leave, as they do not hold parental responsibility for the child.
Most foster carers are classified as self-employed, not employees. Consequently, they do not benefit from the full range of employee rights, such as time off for dependants. This changes if foster carers hold employee status in another capacity, which may be the case for foster carers with additional jobs.
The statutory entitlement to time off for dependants encompasses a comprehensive definition of a dependant. It is not linked to having parental responsibility and imposes no length of service requirement. However, it is only available for emergency caring situations.
Recent progress in qualifying employees’ right to request flexible working demonstrates the importance of considering the specific needs of adopters, those fostering to adopt, kinship carers, and foster carers. An employee who has completed at least 26 weeks of service and has, or anticipates having, caring responsibilities, can request a flexible working arrangement once a year.
Flexible Working Regulations
Moving away from the requirement for employees to hold parental responsibility, the Flexible Working (Eligibility, Complaints and Remedies) Regulations 2002 represented a positive shift by extending the right to request flexible working to include the mother, father, adopter, guardian or foster parent of the child, their spouse or partner.
The Flexible Working Regulations 2007 expanded this list of individuals entitled to request flexible working to include private foster carers, individuals with a residence order in place for a child, and their respective spouse, partner, or civil partners. The entitlement, however, hinges on the length of service.
It is crucial that carer’s leave applies to all carers, regardless of service length and employment status. Entitlements should extend to household members, including spouses, partners, and civil partners, who are likely to contribute to care.
These new entitlements should be flexible, allowing for half-day leave, with short or advance notice, and postponements. This flexibility is especially essential for foster carers, kinship carers, and adopters who may need to attend numerous meetings related to care and placement planning, particularly when it involves children and young people with long-term care needs.
