- The right to time off to care for dependants is intended to be for emergencies only, and the time taken off is unpaid.
- In deciding whether to allow the time off, the employer can consider whether it is necessary, and take into account any previous dependant leave which the employee has taken.
- There is no specified limit on the length of a period of time off for dependants - but it must be reasonable.
- An employee can make a complaint to the employment tribunal that s/he has been unfairly refused time off to care for dependants.
- Dismissing an employee for taking time off for dependants will be automatically unfair.
The Government has confirmed that employees will have a right to take time off work as carer's leave. An implementation date has not yet been announced, however, upon implementation, employees will have a day one right to take up to 5 days' unpaid leave per year in order to provide care to someone who has a long term care need. The required relationship with the employee will be the same as that which already exists in relation to the right to take time off for dependants e.g. child, spouse etc.
Read more on this in our In Depth section.
- where a dependant falls ill, is injured or is assaulted
- to making arrangements for the provision of care.
- where the employee has to make arrangements for the provision of care for a dependant
- in the case of the death of a dependant
- where the arrangements for the care of a dependant have been unexpectedly disrupted or terminated (eg a child-minder fails to turn up)
- where there has been an unexpected incident involving the employee's child at school.
Also key to the definition is the involvement of a dependant in the emergency at hand. For this reason, emergencies relating to other domestic circumstances eg a flood at home will not be covered under this right.
A dependant of an employee is defined in the legislation as one of the following:
- husband or wife or partner
- someone else who is regarded as part of the family and lives with an employee (but not tenants, boarders, lodgers or employees)
- anyone else who is reliant on an employee in emergency situations
- the availability of someone else who can help in the circumstances
- the nature of the incident
- the relationship of the employee with the dependant.
The entitlement is to a 'reasonable amount of time off'. In assessing this, the employer cannot take into account the needs of the business and any disruption that the employee's time off might cause. However, if the employee has taken time off to care for dependants on previous occasions, the employer can take into consideration the following:
- the number of times the employee has taken time off
- the length of time off that the employee has taken
- when the time off was taken
- whether on each occasion the employer was informed of the absences
Employers should hold a return to work interview with an employee on their return to work after a period of time off for dependants, noting the number of days taken and any support to be offered to the employee. A template form for this purpose is available in the Time off for dependants section within our model documents.
The right to take time off to care for dependants is in an emergency only. The very nature of the entitlement to time off for dependants means that the employer cannot plan for the time off. However, the employee is required to inform the employer as soon as reasonably practicable about the absence, the reason for it and the anticipated length. Any extension to the originally anticipated length must be notified to the employer as soon as is reasonably practicable. The employee is not required to give 'daily updates' if the absence goes on for more than one day, but he or she is expected to keep the employer informed.
- where it is not necessary to take the time off (for example, if a child has had a serious accident it would be reasonable for both parents to go to the hospital, but if a childminder was ill it would not be reasonable for both parents to leave their work to care for the child) or
- where the amount of time off requested by the employee is unreasonable.
Under normal circumstances, an employer is likely to only deal with a relatively small number of instances of time off for dependants throughout the year. However, on rare occasions, the number of instances may well increase due to unprecedented situations like coronavirus. Even when this happens, it is not within the discretion of the employer to deny the right to time off for dependants. Employers are encouraged to open up communication with employees about how an extended period of time off will be dealt with. Homeworking, annual leave or a temporary period of flexible working may help.
Employers must take a common sense approach when establishing principles around a ‘reasonable’ amount of time. An Employment Tribunal has held, in Naisbett v Npower Ltd, that a total of seven days, spanning six instances of absence, within a period of 12 months was ‘reasonable’.
The right to take time off for dependants extends to the amount of time necessary to make arrangements in consequence of an emergency situation. In the circumstances of a death, the amount of time to be taken would cover, for example, making funeral arrangements but does not cover time taken by an employee in order to grieve.
Time off to grieve would normally be covered under an employer’s compassionate/bereavement leave policy. Entitlements are at the discretion of the employer. However, from 6 April 2020, 'bereaved parents' are entitled to take a maximum of 2 weeks' leave as parental bereavement leave in the event that they lose a child under the age of 18. This is the only type of statutory bereavement leave available. Please refer to parental bereavement leave for more information.
During any period when the employee is absent from work under the time off to care for dependants provisions, he or she is not entitled to pay. Continuity of service will, however, not be affected.
An employee can make a complaint to the employment tribunal that he or she has been unreasonably refused time off to care for dependants. This claim carries no service qualification. If the complaint is found to be justified, the tribunal will make a declaration that the refusal was unfair, and award compensation that is 'just and equitable'. This is determined with consideration of any loss that the employee might have suffered and having regard to the employer's default.
Dismissing an employee because he or she exercised the right to take time off to care for dependants will be automatically unfair. Similarly, employees must not be subjected to any detriment for exercising this right. This means that the normal two year qualifying service rule will not apply; employees can make this claim from day one of employment. Compensation for a dismissal of this kind is capped at the current statutory limit as shown on our Statutory Rates page.
Schools and nurseries are subject to closure as part of the response to the coronavirus pandemic. When parents receive notification, sometimes at very short notice, that their child’s school will be closed, they are entitled to take dependant leave, subject to eligibility requirements, in order to make arrangements for their continued care.to . Unfortunately, although it certainly fitted the definition of an emergency it is insufficient to deal with the situation: the statutory right may not provide enough timeto cover the entire closure period— the usual length of this leave is two days and closures tend to last for longer than this— and it is unpaid. Employers and employees will need to agree arrangements to cover the period of the closure where no other childcare arrangements are available, for example, temporary homeworking, temporary flexible working, annual leave, unpaid leave or, where eligible, furlough.
This Government has confirmed its intention to introduce an entitlement to carer’s leave as a day one right for employees and has given an outline of what this new employment right will look like.
It takes on some of the characteristics of the current right to take time off for dependants but goes much further in that time off can be booked in in advance, but it also adds in some extra criteria.
Who can take carer's leave?
Unpaid carers - those who, as part of their life, have some caring responsibilities for dependants but are not paid to look after them e.g. looking after an elderly parent, or have a disabled child - will be able to take up to one week (five working days) of unpaid leave per year. This can be taken flexibly, either in individual days or half-days, up to a block of one week.
Eligibility will rely on the carer’s relationship with the person being cared for, which will broadly follow the definition of dependant used in the right to time off for dependants: 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.
The person being cared for should have a "long-term care need". This would be defined as a long-term illness or injury (physical or mental), a disability as defined under the Equality Act 2010, or issues related to old age. There would be limited exemptions from the requirement for long-term care, for example in the case of terminal illness.
No official evidence will be required in order to take carer's leave; employees will be able to self-certify their entitlement. Fraudulent requests can be dealt with via the disciplinary process.
What can carer's leave be used for?
It can be used for providing care or making arrangements for the provision of care for a dependant who requires long-term care. This is likely to include providing personal support such as keeping someone company; providing practical support such as making meals, going shopping for someone, laundry, gardening etc; helping with official or financial matters such as paying bills, helping with paperwork; providing personal care and/or medical care such as collecting prescriptions, getting dressed etc and making arrangements such as dealing with social services or making home adaptations.
Is any notice required to take leave?
Yes. Employees will need to give notice that is twice the length of the time off to be taken, plus one day. Employers will be able to postpone the request for reasons limited to undue disruption of operations, by giving counter-notice. Denying leave outright will not be permitted.
What protection will employees have in relation to carer's leave?
Employees cannot be penalised for taking carer's leave. Dismissal for reasons connected to exercising the right will be automatically unfair.
When will carer's leave be introduced?
There is no indication as to a timetable for introducing this new right, however, and the Government's consultation response makes clear that legislation to introduce the day one statutory employment right will be brought forward “when parliamentary time allows”.